Bombay High Court
Madhukar Ganpatrao Bansode & Anor vs The State Of Mah. Thru Its P.S.O on 13 September, 2017
Author: Swapna Joshi
Bench: Swapna Joshi
apeal 159.07.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 159 OF 2007
1) Madhukar s/o Ganpatrao Bansode,
Aged about 51 years,
Occu:- Motor Vehicle Inspector,
R/o.-Ambejogai, Tq. Ambejegoi, Dist.Yavatmal.
2) Gopinath s/o Eknath Sahare, ..... (Dead)
Aged about 51 years,
Occu:- Peon (in the office of R.T.O.), Yavatmal,
Tq. & Dist. Yavatmal.
(Legal Heirs of appellant no.2)
L.Rs. of appellant No.2
brought on record as per
1) Smt. Pratibha wd/o Gopinath Sahare,
Court's order dated
Aged about 47 years, Occu: Household. 19.3.2010
2) Ku. Suchitra d/o Gopinath Sahare,
Aged about 22 years, Occu: Nil,
3) Swapnil s/o Gopinath Sahare,
Aged about 20 Years, Occu: Nil,
4) Ku. Priyanka d/o Gopinath Sahare,
Aged about 18 years, Occu: Nil,
All are residents of Dalit Society,
Jaibhim Chowk, Yavatmal, District. Yavatmal. .. APPELLANTS
-v e r s u s-
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apeal 159.07.doc
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The State of Maharashtra, through
its Police Station Officer, Police Station,
Yavatmal City, Yavatmal. .. RESPONDENT
...........................................................................................................................
Mr. R.B. Gaikwad, Advocate for appellant No.1.
Mr. C.N. Deshpande, (Appointed) Advocate for appellant No.2.
Mrs. Shamsi Haidar, A.P.P. for State
...........................................................................................................................
CORAM :
MRS. SWAPNA JOSHI,
J .
DATED: 13 September, 2017
th
J U D G M E N T
This Appeal has been directed against the judgment and order dated 11th April, 2007 delivered by the learned Special Judge, Yavatmal in Special Case No.5/1998, thereby the learned Special Judge had convicted both the appellants (hereinafter will be referred as 'the accused') for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and were sentenced to suffer Rigorous Imprisonment for six months and to pay a fine of Rs. 1000/- each, in default, to suffer simple imprisonment for one month.
2] The learned Special Judge further convicted Madhukar (accused no.1) for the offence punishable under Section 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption Act and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default, to suffer simple imprisonment for one month. 3] I have heard Mr. R.B. Gaikwad, the learned Counsel for appellant no.1, Mr. C.N. Deshpande, the learned Counsel for appellant no.2 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 3 and Mrs. Shamsi Haider, the learned Additional Public Prosecutor for the respondent/State. I have perused the entire evidence on record led by the prosecution and the judgment passed by the learned Special Judge.
4] The prosecution case, in nutshell, is as under :-
Complainant PW-1-Ravindrakumar Hiralal Jaiswal was running a 'Sai Driving School' at Lal Bahadur Shastri Market, Yavatmal, since 1989. He used to give training to the students for driving light vehicles. He used to help the students for getting the learning driving licence by submitting requisite form and paying requisite fees, from A.R.T.O., Yavatmal. After completing the training, he used to take the students at A.R.T.O., Yavatmal to submit their application in requisite Form No.4, with certificate of completion of training in driving and to pay the requisite fees for getting the permanent driving licence. On taking their driving test by the Motor Vehicle Inspector, they used to get the permanent driving licence.
5] On 18/12/1996 the complainant along with 19 candidates went to A.R.T.O Office, Yavatmal, for getting their permanent driving licence. accd. no.1being a Motor Vehicle Inspector, took the driving test of 19 candidates and out of them 18 passed and one failed. It is the further case of prosecution that, accd. no.1 had demanded the bribe amount of Rs. 2400/-, for providing driving licence for all these candidates. As the complainant was not having the said amount, he told accd. no.1 that he will handover the said amount later on. On 24/12/1996, when the complainant went with one student for getting his learning licence at A.R.T.O. Office, Yavatmal, accd.no.1 demanded the due amount of Rs. 2400/- for 18 students and Rs. 25/- for one ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 4 learning licence of that day. Thus, accd no.1 demanded the total amount Rs. 2425/-. Accd no.1 said unless the said amount is paid to him, he would not issue the licence. The complainant then narrated all the instances to his father who was running the Driving School. Accordingly, father of the complainant talked on telephone with Wadkear, the Assistant Regional Transport Officer and instructed him to meet Wadekar after sometime. The father of the complainant met with Wadekar, the Assistant Regional Transport Officer. Mr. Wadekar then called accd no.1 and instructed him to issue licence to the candidate brought by the complainant. It is the case of the prosecution that after they came out of the cabin, accd. no.1 got annoyed and warned him that he (complainant) shall bring the amount of Rs. 2425/- otherwise he would not pass any of the students of his driving school. The complainant assured to pay the said amount to accd. no.1 and went away. 6] It is the case of the prosecution that the complainant took four candidates on 26/11/1996 at A.R.T.O. camp at Wani. It is alleged that after the test of those students was conducted, accd. no.1 then called the complainant and demanded him the cash amount of Rs. 100/- for four candidates and earlier balance of Rs. 2425/-, thus total amount of Rs. 2525/-. The complainant handed over the amount of Rs. 100/- to accd. no.1, however, for the remaining amount of Rs. 2525/- he assured to accd. no.1 that he will pay the earlier balance amount at Yavatmal as he was not having the amount. It is alleged that accd. no.1 threatened the complainant that if the entire amount is not paid to him, he would not allow to run his luxury buses and suspend his driving school.
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apeal 159.07.doc 5 7] As the complainant was not desirous to pay the said amount to accd. no.1, therefore, he proceeded to A.C.B. Office, Yavamtal on 26/12/1996 and lodged his complaint. Mr. Survashe, P.I. A.C.B., Yavatmal recorded the complaint of the complainant (Exhibit-54). Mr. Survashe, P.I. A.C.B., Yavatmal instructed the complainant to come to his office on next day morning at about 6.30 a.m. Accordingly, the complainant attended the A.C.B. office. On 26/12/1996 in the noon Mr. Survashe, P.I. A.C.B., Yavatmal requisitioned two public servants from the office of Deputy Conservator of Forest, Yavatmal to act as panchas and instructed them to attend his office on 27/12/1996 at 6.30 a.m. 8] On 27/12/1996 Mr. Survashe, P.I. A.C.B., Yavatmal at 6.30 am instructed both the panchas and introduced them to all the staff members and also introduced the staff members present there to them. PW-1 appraised both the panchas about his complaint. The complainant produced 25 currency notes each of Rs. 100/- denomination, one currency note of Rs. 20/- denomination and one currency note of Rs. 5/- denomination, thus total amount of Rs.2525/-. Mr. Survashe, P.I. A.C.B., Yavatmal demonstrated about the use and characteristic of anthracene powder and explained that the said powder reflects a blue shining in the light of ultra violate rays. The currency notes of Rs. 2525/- were smeared with anthracene powder and the said amount was kept by the complainant in his right side pocket of the pant. It is the case of the prosecution that after sometime the complainant went to the office and instructed panch no.2 that he shall remain with the raiding party and keep watch on the complainant (PW-1) and panch ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 6 no.1. A Pre-trap Panchanama was recorded (Exhibit-60). 9] Mr. Survashe, P.I. A.C.B., Yavatmal with Dy. S.P. Pande, complainant, panchas and staff proceeded by a jeep towards the R.T.O. Office. They halted the vehicle at some distance. Mr. Survashe, P.I. A.C.B., Yavatmal and the staff took their position near the hotel and Pan Shop in front of the R.T.O. office. When the complainant and pancha no.1 proceeded at RTO Office, accd. no.1 had not attended the office till that time. They both stopped near the RTO Office. After sometime accd. no.1 came there in an Auto Rickshaw. The complainant and panch no.1 followed accd. no.1. Accd. no.1 occupied the chair. Accused No. 2 (Sahare Constable) was present on that place. On seeing the complainant accd. no.1 asked him whether he has brought the amount. On this the complainant said that he has brought the amount of Rs.2525/-. On this accd. no.1 asked the complainant to handover the said amount to accd. no.2 peon who was standing just near them. Accd. No.2 accepted those currency notes by his right hand, he counted those notes and kept it in the right side pocket of his Paijama. The complainant, thereafter, came outside the R.T.O., Office and signalled the raiding party. P.I. Survashe with panch no.2 and the raiding party came at the room at R.T.O.office where accd. no.1 was sitting. P.I. Survashe examined the hands of the members of the squad in the ultra violet rays but none reflected the blue shining of anthracene powder. On inquiry by P.I. Survashe, accd. no.2 informed that the amount received from the complainant is kept by him in the right side pocket of his paijama. Accd. no.1 and accd. no.2 were then examined under the ultra Violet rays and during ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 7 that there was a shining of anthracene powder to both the hands and fingers of accd. no.2. Accd. no.2 took out the tainted currency notes from his right side pocket of his Paijama and kept it on the table in front of accd. no.1. On examination it in the ultra violet rays, the blue shining of anthracene powder on the currency notes was noticed. The tainted notes 'Article-A' were taken charge by PI Survashe under Panchanama (Exhibit-61). On examination of Paijama of accd. no.2 in Ultra Violet Rays, shining was seen at the mouth of the right side pocket of his Paijama. The Paijama was then seized under panchanama (Exhibit-62).
10] P.I. Survashe then prepared a report (Exhibit-74) and sent it to the Police Station, Yavatmal (city). On the basis of the said report, offence was registered against accd. no.1 and accd. no.2. The necessary investigation was conducted by PI-Survashe. He recorded the statements of witnesses. The papers of investigation were forwarded to the Transport Commissioner at Transport Office, Transport Division, Mumbai, along with the letter for according sanction to prosecute the accused persons. The sanction was accorded vide Exhibit-68 to prosecute the accused persons from the Transport Commissioner, Mumbai. On getting the sanction, chargesheet was filed against the accused persons before the Special Court, Yavatmal. 11] The learned Special Judge framed the charge against accd. no.1 and accd. no.2. Both the accused denied the charges levelled against them and claimed to be tried. The learned trial Judge on analysis of evidence and on hearing both the sides, convicted both the accused as aforesaid.
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apeal 159.07.doc 8 12] Mr. Gaikwad, learned Counsel for accd. no.1 vehemently argued that, the judgment passed by the learned Special Judge is illegal and perverse, inasmuch as the learned Special Judge has not considered the aspect that the demand allegedly made by accd. no.1 with regard to the amount of gratification, has not been proved by the prosecution beyond reasonable doubt. He further submitted that, the version of the complainant, with regard to the alleged demand of bribe amount, is an improvement made by the complainant. Mr. Gaikwad, the learned Counsel for accused no.1 submitted that the demand of gratification amount is sine-qua-non for proving the offence against accd. no.1 and since it is not proved, accd. no.1 is entitled for acquittal.
13] To substantiate his contention, Mr. Gaikwad, learned Counsel for accd. no.1 placed reliance on the decision of the Hon'ble Apex Court in the case of B. Jayaraj v State of Andhra Pradesh, reported in (2014) 13 SCC 55, wherein it is held that the presumption under Section 20 of the Prevention of Corruption Act can be drawn only after demand for an acceptance of illegal gratification is proved.
14] The learned counsel Mr. Gaikwad has not disputed that the sanction to prosecute the accused and was granted and it was a valid sanction order. On this point the law is well settled that the valid sanction is a condition precedent to a valid prosecution.
15] Mr. C.L. Deshpande, the learned Counsel for accd. no.2 contended that accd. no.2 has not accepted the amount and which amount found with him, it was the penalty amount which accd. no.1 asked him to take ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 9 from the complainant.
16] The learned Additional Public Prosecutor for the State Mrs. Shamsi Haider contended that the learned Special Judge has rightly convicted the accused persons on believing the testimony of the witnesses. 17] In order to substantiate its case, the prosecution has placed reliance on the testimony of the complainant P.W.1-Ravindrakumar, P.W.2-Abhay who was Pancha No.1, PW-3-Chandardeo Singh Gurudeo Singh, the Sanctioning Authority, P.W-4-P.I. Narayan Survashe, the Investigating Officer and P.W.5-Shripad Wadekar, the Deputy Regional Transport Officer.
18] Now coming to the testimony of PW-1 who is the complainant and aggrieved person, it is well settled that complainant is an aggrieved person, so also he is an interested person, he is branded as accompaniment, hence his testimony should be scanned with great care and caution.
19] It is well settled position in law that demand of illegal gratification is sine-quo-non, to continue the offence and mere recovery of currency notes cannot constitute the offence u/s 7 of the Prevention of Corruption Act, unless it is proved beyond all reasonable doubts, that the accused voluntary accepted the amount knowing it to be bribe. Keeping in mind the above said principle of law the testimony of the complainant is to be viewed on material aspects with regard to the demand of bribe amount by accd. no.1 and the acceptance by accd. no.2.
20] The testimony of PW-1 is reflected in the prosecution case ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 10 hence it is not repeated. On careful scrutiny of the testimony of PW-1 it is noticed that his testimony is full with discrepancies, improvements and embellishments which go to the root of the case and creates a serious doubt about the alleged demand and acceptance of the bribe amount. In his cross- examination, PW-1 admitted that during the period from 18/12/96 to 27/12/96 he had not lodged written complaint about the alleged demand made by accd. no.1. P.W-1 admitted that after the inspector submitted the proposal of recommendation, the question does not remain whether the licence issued or not. It is significant to note that P.W.1 admitted that on 26-12-96 at Wani Camp, accd. no.1 had passed all the 4 candidates who were taken by him, then subsequently licence were issued. accd. no.1 had passed those 4 candidates during the test. In view of the specific admissions given by the PW.1, it is not clear as to why accd. no.1 then demanded the amount for issuing licence to the 4 candidates who were taken by him to the RTO office on that day. It is the case of PW.1 that accd. no.1 demanded an amount for 18+1+4 candidates. It is not clear as to how accd. no.1 had issued licence to the 4 candidates which were brought to him on 26.12.96. 21] It is interesting to note that in the cross examination PW-1 stated that accd. no.1 demanded amount of Rs.2400/-, for the first time on 18/12/96 and thereafter till 26.12.96. However, the improvements were noticed in the version of P.W.1 to the effect that after the test of the candidates was over accd. no.1 demanded from him the amount of Rs. 2400/- for the 18 candidates passed and PW-1 said to him that he was not having the said amount and on that accd. no.1 informed him that he would not issue the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 11 licence till he paid him the said amount. P.W.1 then made an improvement with regard to the demand made by accd. no.1 on 19.12.96. The said improvement was to the effect that P.W.1 again came to accd. no.1 and requested him to issue licence and on that accd. no.1 said that unless he does not pay the amount to him, he would not issue licence. P.W.1 further made an improvement that on 24/12/1996, he went to R.T.O. Office for getting licence for one of the candidates and on that day accd. no.1 took the test of that candidate and issued the learning licence. On that day also accd. no.1 demanded the amount of Rs. 2400/- for 18 candidates who were passed on 18/12/96 and said that when he would pay the old amount then he would issue the learning licence for one candidate. In the cross examination it was suggested to P.W.1 that when demand was made by accd. no.1 before issuing learning licence why he did not mention this fact before the police. From the above said improvements, it is doubtful, whether any demand was made by accd. no.1.
22] Further improvements were pointed out in the testimony of P.W.1 to the effect that on 24/12/96 after telephonic talk of PW-1 with his father, Wadekar (P.W.5) called him in his chamber and he narrated all the instances about the demand made by accd. no.1 and then Wadekar called accd. no.1 and scolded him.
23] P.W.1 failed to mention any reason as to why all these facts were not recorded by Police in his statement before A.C.B. It was suggested to P.W.1 that as there was no demand from accd. no.1 to PW-1 and as no such incident occurred, regarding Wadekar scolding accd. no.1, all ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 12 these facts are not recorded in his statement before the ACB. 24] PW-1 admitted that in the year 1996, one bus bearing MH-29/6855 was in the name of his father (Hiralal). There was some action by RTO office in respect of said bus and his father had paid the penalty. PW-1 however failed to state whether the said action was taken by accd. no.1. P.W.1 further stated that in the year 1996 his father was having another Mini Bus, the rear wheels of that bus were of one wheel only and if one more wheel was attached to the either side of the rear wheels, then the capacity of the bus was to increase. P.W.1 failed to state whether there was any action against his father, in respect of adding rear wheel of the mini bus and therefore the action was taken on the report of accd. no.1 against his father. From the suggestion given by the defence, it appears that there was some action taken against the father of P.W.1 by accd. no.1, therefore, P.W.1 had grudge against accd. no.1 and therefore he lodged the complaint against him and this must be the reason that the testimony of P.W-1 was full with improvements and embellishments. On the factum of the acceptance of the bribe amount, P.W.1 stated that there was procedure in RTO Office for accepting the fine penalty, in respect of vehicles but it was not in respect of the bus. P.W.1 did not state the reason as to why there were many proceedings pending against his father and the institute. 25] On the point of raid, P.W.1 stated that when he entered in the room of accd. no.1, one Deshmukh Inspector was present in the room of accd. no.1. Significantly the said inspector has not been examined by the prosecution. It has come in the testimony of PW-1 that many persons visited ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 13 to Inspector Deshmukh who was sitting in the room where accd. no.1 was sitting. According to P.W.1, when he reached to office of accd. no.1, he demanded the amount of Rs. 2525/- and accd. no.1 directed to pay the said amount to the Peon of R.T.O. Office, who was standing near him. PW-1 also stated that accd. no.1 instructed that Peon to receive said amount. Significantly the said version of PW-1 does not find place in his statement recorded by A.C.B. PW-1 has made an improvement with regard to the fact that prior to raid, accd. no.1 demanded the amount of Rs. 2525/- from PW-1 and accd. no.1 directed PW-1 to pay the said amount to accd. no.2. All these glaring discrepancies in the testimony of PW-1 go to the root of the case. PW-1 further made an improvement that an enquiry by PI Survashe and Pande, as to whom he had paid the amount and who was Bansode, at that time he pointed out towards accd. no.1 and accd. no.2 and informed that as asked by accd. no.1 he had paid the amount to accd no.2. The above said entire version is missing in the statement of PW-1 recorded by A.C.B. The said fact creates a serious doubt with regard to PW-1 pointing out to PI Survashe as to how he offered the amount to accd. no.1, and as per the directions of accd. no.1, P.W.1 paid the said amount to accd. no.2 who was standing near accd. no.1. PW-1 also made an improvement with regard to the fact that he had given the amount of Rs. 2525/- to accd. no.2 and it was kept by him in the right side pocket of the Paijama and that as instructed by P.I Survashe, one Constable took out said amount from the right side pocket of the pant of Accused No.2-Sahare and that amount was found to be Rs. 2525/- and in the lamp bluish glue was seen. On enquiry by P.I Suroshe to ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 14 PW-1, PW-1 said that it was the same amount, which was received by accd. no.2. All these facts are missing from the statement of PW-1 recorded by the ACB. On careful scrutiny of the testimony of PW-1, it is found that his entire testimony is shrouded with discrepancies, which go to the root of prosecution case and makes the entire case of the prosecution doubtful with regard to the demand & acceptance of the gratification amount.
26] Thus P.W.1 is not found to be a reliable and trustworthy witness and his testimony does not inspire confidence. It appears that the case put up by the defence with regard to accd. no.1 directing to PW-1 to give the amount to accd. no.2 for depositing it as a fine amount, appears to be true.
27] The testimony of P.W-2 indicates that on 27/12/1996 P.W-2 and the other panch were called on 27/12/1996 at about 6.30 a.m. to ACB Office, Yavamtal. The demonstration was given by P.I. Survashe with regard to the application of Anthracene Powder and the glow of currency notes in the ultra violet rays. P.W.2 accompanied the complainant and raiding party to the R.T.O. Office. According to him, he along with the complainant went near the table of accd. no.1. There was talk between the complainant (P.W.1) and accd. no.1 in respect of licence. PW-2 further stated that he does not know the details about the talk. Thus, P.W.2 failed to state about the demand made by accd. no.1 from the complainant. P.W.2 then stated that P.W.1 took out the amount from his right side pant pocket (Paijama) and gave it to accd. no.1. On this accd. no.1 instructed to PW-1 to give the said amount to Gopinath (accd. no.2) who was the peon of that office. At that time accd. ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 :::
apeal 159.07.doc 15 no.2 was standing near the rack at about 3 to 4 feet away from accd. no.1. Accordingly, P.W.1 gave the said amount to accd. no.2. accd. no.1 then kept the said amount in his right side Pyjama Pocket. The complainant then went outside the Office and signalled the raiding party. Immediately, the members of the raiding party and other panch came inside the office and instructed both the the accused not to move. It is significant to note that P.W-1 has categorically deposed that both the panchas were with him, when the amount was handed over to accd. no.2 as per the instructions of accd. no.1 in RTO office. Whereas PW-2 is completely silent on the aspect of presence of another panchas with him in the RTO Office, when accd. no.1 allegedly handed over the said amount on his instructions to accd. no.2. 28] PW-2 further deposed that he along with PW-1 went near the table of accd. no.1 where he was sitting and there was a talk between PW-1 and accd. no.1 in respect of licence. PW-2, however, fairly stated the he does not know the details about the talk between PW-1 and accd. no.1. The said version of PW-2 makes amply clear that no demand was made by accd. no.1. According to PW-2 after the trap was led PW-1 was instructed to go out and stay near Siddheshwar Temple, which was near the R.T.O. Office and accordingly he went away. In view of the said version of PW-1, it appears that PW-1 was not present at the time of further proceedings by PW-4-PI-Survase. It is also clear that at that place no panchanama was prepared by the Investigating agency in his presence. 29] According to PW-2, when the ultraviolet rays were focused on the currency notes which were taken charge from accd. no. 2 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 16 there was blue glow. Those currency notes were taken charge by the investigating agency and the seizure panchanama was recorded (Exhibit-61) and the panchanama no.2 (Exhibit-64) was recorded at R.T.O. office. The cross examination of PW-2 shows that PW-2 along with PW-1 went near the table of accd. no.1. At that time Mr. Deshmukh of that office was sitting on the chair, who was across the table, in front of accd. no.1. PW-2 further stated that accd. no.2 was coming in and going out from the room and no other staff was present there. However, many persons visited him in respect of the licence. The said version of PW-2 indicates that accd. no.1 was not alone in his room and just across the table one Mr. Deshmukh who was serving in the same office and many people were visiting him in respect of grant of licence. In these circumstances, it would not be possible for accd. no.1 to demand the bribe amount from PW-1. The said version of PW-1 in that regard does not appear to be convincing and digestible. 30] An improvement was pointed out in the testimony of PW-2 with regard to the fact that in panchanama no.2, it is mentioned that, when accd. no.1 asked PW-1 to pay the amount to accd. no.2, accd. no.2 was standing near the rack. However, the said version does not find place in his statement recorded by the ACB. Similarly, in panchanama no.2 there is no mention of the fact that accd. no.2 was standing near the rack about 3 to 4 ft. from accd. no.1. The said improvement goes to the root of the prosecution case and creates a serious doubt about accd. no.2 standing besides accd. no.1. accd. no.1 directed to PW-1 to handover the bribe amount to accd. no.2 and accd. no.2 accepted the said amount, as a bribe. Thus, the testimony of ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 17 PW-2 does not inspire confidence. Thus, in view of the serious discrepancies in the version of PW-2 about the demand as well as the acceptance of bribe amount, his testimony does not inspire confidence. In fact PW-2 has not stated about the demand made by accd. no.1. From the version of PW-1 thus there is no corroboration to the testimony of PW-2. Similarly the version of PW-1 as discussed above is full with improvements and embellishment. Hence his testimony cannot be relied upon. 31] On the point of acceptance of the bribe amount, the testimony of PW-2 cannot inspire confidence as he had made an improvement with regard to the fact that accd. no.2 was standing near the rack. There is no corroboration in that regard. Thus PW-2 is not found to be a reliable witness.
32] In the testimony of PW-5- Shripad Krishnarao Wadekar, who was serving as a Assistant Regional Transport Officer at RTO Yavatmal, accd. no.1 was serving as Motor Vehicle Inspector at RTO and accd. no.2 was serving as a Peon at RTO. accd. no.1 was empowered to conduct the test of candidates and issue licence. PW-3 stated that there was a complaint from proprietor of Sai Driving School against accd. no.1, the Motor Vehicle Inspector, that he was harsh in taking the test for issuing the licence and there was no other complaint. Pertinently PW-5 did not state about the complaint against accd. no.1 that he was demanding illegal gratification from the complainant (PW-1). PW-5 admitted in his evidence that there was Challan to the bus on 22-11-96 owned by Hiralal father of Ravindra Jaiswal (complainant) who is the owner of Sai Driving School and submitted the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 18 charge-sheet thereon against the driver and owner of the bus in the Court of C.J.M., Yavatmal and fine was imposed. The said version of PW-5 makes clear that as there was Challan to the bus of father of complainant, he had a grudge against accd. no.1 hence he had lodged a false complaint against the accd. no.1.
33] On careful scrutiny of the evidence of all the witnesses, it is abundantly clear that the testimony of PW1 is full with discrepancies and improvements and embellishments. The testimony of PW-1 is not corroborated by testimony of PW-2 and PW-5 with regard to the aspect of demand as well as acceptance of bribe amount. The talk of PW-5 shows that there was challan to PW-1's father and prior to lodging of the complaint by PW-1 in A.C.B. Department, the Criminal case was pending against him in which fine was imposed. So also there were many proceedings pending against the father of PW-1 and his driving school. It appears that as accd. no.1 was harsh in conducting test of the candidates, PW-1 was disturbed thinking that the driving school would not run smoothly and therefore a false case has been lodged against accd. no.1 as well as accd. no.2. 34] The prosecution has miserably failed to prove the offence against the accused persons. The demand as well as seizure of amount is not proved beyond reasonable doubt. It appears that accd. No.2 has received the amount towards the fine amount and before any receipt could be issued the raid was conducted. The learned trial Judge has not considered all these aspects in right perspective and has convicted the accused persons. The judgment and order delivered by the learned trial ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 19 Judge needs to be quashed and set aide. As the prosecution has failed to prove the demand made by the accused towards illegal gratification, it would be wholly unsafe to sustain the conviction of the appellants. 35] No cogent and convincing evidence is brought on record to show that the accused has actually demanded bribe amount. In this context, it is significant to note that, simply finding of the amount with the accused, is not a conclusive proof that the amount has been accepted by him towards illegal gratification, in the absence of any demand of bribe amount. There is absolutely no evidence on record to show that the accused demanded the money for doing official act and accordingly the accused accepted it for the same.
36] As far as the demand is concerned, the learned counsel for the appellant placed reliance on AIR 2010 SC 1589 in the case of Banarasi Dass v. State of Haryana, wherein it is held by the Hon'ble Apex Court that the proof of demand and acceptance of bribe is essential and in absence of proof of demand and acceptance of bribe by the appellant, appellant is entitled to acquittal. It is also held that mere proof of recovery of bribe amount from the appellant is not sufficient to prove the offence.
37] In the case of Ashok Kumar Wardhani v State of Maharashtra reported in 2003 All MR (Cri) 88, the complainant was only witness regarding alleged demand. It was held by this Court that the complainant being an interested witness the Court must look for independent corroboration.
38] The Hon'ble Apex Court in the case of Jaswant Singh v ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 20 State of Punjab, reported in AIR 1973 SC 707, has held as under :-
"As PW 1 is the complainant, his evidence will have to be considered with great caution and it will not be ordinarily safe to accept his interested testimony unless there is material corroboration found in the other evidence adduced by the prosecution."
39] In the case of B. Jayaraj v State of Andhra Pradesh, reported in (2014) 13 SCC 55, the Hon'ble Apex Court has held as under :-
"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 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., reported in (2010) 15 SCC 1 and C.M. Girish Babu v. CBI, reported in (2009) 3 SCC
779."
40] In case of P. Satyanarayana Murthy v Dist. Inspector of Police and another reported in 2015 Cri.L.J. 4670, the Hon'ble apex Court has held :-
"The proof of demand of illegal gratification, is the gravamen of the offence under Ss.7 and 13(1) (d)(i) and
(ii) 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 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 27/09/2017 23:23:49 ::: apeal 159.07.doc 21 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 Ss. 7 or 13 of the act would not entail his conviction thereunder."
41] In the instant case the prosecution has failed to prove the factum of demand beyond reasonable doubt. The testimony of the complainant and panch even if accepted on the face value it falls short of the quality and decisiveness of proof of demand of illegal gratification as contemplated by law, to hold the offence under Section 7 or 13(1)(d) (i) & (ii) of the Prevention of Corruption act has been proved.
42] In view of above, it is held that the prosecution has failed to prove its case beyond reasonable doubt. In these circumstances, the benefit of doubt is to be given to the appellants/accused. The learned trial Court has not properly evaluated the evidence led by the prosecution. In view thereof, the judgment and order passed by the learned trial Judge, needs to be quashed and set aside. Hence, the following order:-
O r d e r
(a) Criminal Appeal No.159 of 2007 is allowed.
(b) The judgment and order dated 11th April, 2007
delivered by the learned Special Judge, Yavatmal
in Special Case No.5/1998, is quashed and set
aside.
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apeal 159.07.doc
22
(c) The appellants are acquitted of the offences
under Sections 7, 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988.
(d) The bail bonds furnished by the appellants stand
cancelled.
(e) The fine amount, if any, deposited by the
appellants be refunded to them, if not withdrawn.
(f) Fees of the learned Counsel (appointed) for
appellant no.2 shall be quantified at Rs. 5000/-.
(g) Muddemal property be dealt with as directed by
Trial Court after the appeal period is over.
JUDGE
Nandurkar
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