Bombay High Court
Ravindra Marotrao Thakre vs The Government Of India Cbi,Nagpur on 29 May, 2019
Equivalent citations: AIRONLINE 2019 BOM 377, 2019 (2) ABR(CRI) 886 (2019) 5 MH LJ (CRI) 715, (2019) 5 MH LJ (CRI) 715
Author: B. P. Dharmadhikari
Bench: B. P. Dharmadhikari
Judgment 1 Cri.apeal609.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 609 OF 2015
Ravindra s/o Marotrao Thakre
About 44 years, Occ. Service,
R/o. Plot No. 14, Shriram Colony,
Chhindwada (M.P.) at present A/7,
CMPF Complesx, Sati Nagar,
Gupteshwar Road, Jabalpur.
.... APPELLANT
// VERSUS //
The Government of India,
Central Bureau of Investigation,
Nagpur.
.... RESPONDENT
_________________________________________________________________
Shri A.K. Choube, Advocate for the Appellant.
Mrs. Mugdha R. Chandurkar, Panel Advocate for Respondent.
_________________________________________________________________
CORAM : B. P. DHARMADHIKARI, J.
DATE : 29.05.2019.
ORAL JUDGMENT:
With Assistance of Adv. Choube for appellant and the Panel Advocate, Advocate Mrs. Mugdha R. Chandurkar for respondent. The appeal is being heard since last about two days.
2. The appellant before this Court has been convicted by Special Court designated at the Prevention of Corruption Act, 1988, on 29.10.2005, for offence punishable under Section 7, 13 (1) (b) read with Section 13(2) of the above Act. For offence under Section 7 he has been sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/- or in default ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 2 Cri.apeal609.2015.odt to suffer simple imprisonment for two months. For offence under Section 13(1)(b) read with Section 13(2) is sentenced to suffer simple imprisonment for three years, to pay fine of Rs. 1,500/- or in default to suffer simple imprisonment for four months. Both the sentences are to run concurrently.
3. This Court has admitted the appeal on 24.11.2005, and allowed Criminal Application No. 3233/2005, thereby directing release of applicant/ appellant on bail.
4. The raid/trap in the matter was conducted on 11.10.1996 and at that time appellant was about 41 years old, thus, now he is more than 63 years of his age.
5. In this backdrop, Advocate Choube submitted that sanction for prosecution accorded by PW-3 Shubhendu vide Exh. 33 is vitiated. He contends that according sanction under Section 19(a) is not an empty formality and the authority concerned must apply its mind to all relevant parts. PW-3 has merely signed the proposed draft for grant of sanction sent by Anti Corruption Bureau (ACB) and this act shows total non-application of mind. He relies upon cross-examination of this witness to demonstrate that material papers having bearing on the process of application of mind, were never called for and hence the grant of sanction itself its vitiated and void. Prosecution commenced on its basis and conviction, therefore, cannot be sustained. He relies upon judgment of this Court in the matter of Nishikant Bhaskarrao Kulkarni since deceased) through his Legal Heirs (Dr.) & Ors. Vs. State of Maharashtra, reported at (2019)2 Bombay Case Reporter (Criminal) Page No. 18.
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Judgment 3 Cri.apeal609.2015.odt
6. Without prejudice and in the alternative, learned counsel contends that evidence of PW-1, Complaint & PW-2 Shadow witness and the two officers of the Anti Corruption Bureau is mutually inconsistent and therefore cast a cloud of doubt on entire prosecution version, he states that charge was framed by the Trial Court vide Exhibit No. 4 on 24.08.2004 and it was denied by appellant who has claimed false implication. Burden was therefore on prosecution to show not only the demand and its acceptance but also to prove the trap by cogent and convincing evidence.
7. He states that complainant PW-1 Keshav s/o Amrut had sought advance from his Provident Fund amount for performing marriage of his daughter. The amount is payable as advance and therefore before marriage. Admittedly as per this witness, marriage of his daughter was already performed on scheduled date in May 1996 only. However, thereafter, he incorrectly and falsely represented that the marriage of his daughter was postponed initially to 27th August, 1996, and thereafter pointed out that it was postponed to 10th October, 1996. This inconsistent and false conduct on part of complaint, itself is sufficient to infer an attempt to victimize the officers of Coal Mines Provident Fund Establishment (hereinafter be referred to as 'CMPF' for the sake of brevity). By relying upon Exhibit No. 12, he submits that the said documents dated 11.10.1996 filed as complaint to Central Bureau of Investigation fact of moving application on 2 nd May, 1996, has been pointed out and he has disclosed that Assistant Clerk in the CMPF Office demanded Rs. 2,000/- from him as bribe for sanctioning loan of Rs. 40,000/-. He submits that the details of accused demanding the amount are not appearing therein.
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Judgment 4 Cri.apeal609.2015.odt
8. He invites attention to evidence of complaint, PW-2 Shadow witness Shri Devrao Moudekar and PW-7 Rajesh Vishnoi to urge that from then evidence and its comparison with evidence of PW-5 Shri Kanhaiya Sinha fabrication of documents is apparent. Learned counsel states that date and time of receipt of report lodged by complainant, the time at which work of drawing Exh. 23, Panchanama (Part-1) began and its conclusion all show that the authorities colluded together to prepare false documents.
9. According to him, this gets substantiated from time mentioned in Panchanama (Part-2) at Exh. 24 and so called recovery memo of currency note of Exh. 25.
10. Learned counsel states that story of prosecution that complaint and shadow witness first met accused in his office and then he took them to his residence which is located in same campus, is not substantiated at all by producing entry from visitors book or by pointing out any movement register. He submits that PW-4 Biradar Sinha examined by prosecution shows that at 11:00 am accused was not in his seat and when he returned, again he did not see anybody in the office. This witness heard loud noise and people saying that appellant was traped by ACB, he heard this noise at about 11:15 a.m. This according to him falsifies the entire prosecution story.
11. Learned counsel states that evidence of PW-1, complaint about meeting accused persons on two-three occasions prior to 11.10.1996 is shaky. If he had visited flat (residence) of accused, he could not describe it properly and he also could not explain arrangement inside the flat. Complaint could not explain how from inside or outside, he gave pre-decided ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 5 Cri.apeal609.2015.odt signal or removing the spectacles to the others. According to prosecution PW- 2 Maudekar was standing outside the flat and as such, he could not have heard anything. Despite this, PW-2 narrates the talk between accused and PW-1, which took allegedly inside the flat. Evidence on record creates doubt about giving of signal. It is not clear whether signal was given to Maudekar or then to remaining raiding party with whom ACB Officers and 2 nd Panchanama witness (Part-2) were standing.
12. Inviting the attention to deposition of PW-1, he shows a statement that the amount of Rs. 300/- recovered allegedly from shirt pocket of accused was kept in one envelope. However, when prosecutor opened that envelope, amount of Rs. 800/- was taken out. He further submits that during examination of PW-5 Kanhaiya Sinha, it is again recorded that this envelope was opened and 8 notes were found in it. Learned counsel submits that when envelope was already opened and 8 notes were taken out, there is no question of its being reopened during evidence of Investigating Officer Shri Kanhaiya Sinha.
13. Learned counsel states that amount of Rs. 800/- is stated to be agreed amount of bribe and as per prosecution in trap, Rs. 300/- were recovered from shirt pocket while remaining amount of Rs. 500/- were taken out of an Almirah in the flat of accused. This bifurcation gets lost because all 8 notes were taken out from envelope article P-3. This runs counter to story of complainant.
14. He further states that role of accused in the process of sanctioning of marriage advance has not been brought on record at all. ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 :::
Judgment 6 Cri.apeal609.2015.odt Evidence of PW-6 Ashok Pohankar shows that he was dealing with marriage advance cases and charge was not given to accused at all.
15. In the light of this evidence on record, learned counsel states that work of recording of Panchanama (Part-2) (Exh. 24) which begins at 12:30 continued up to 15:00 hours and this Panchanama does not mention that raiding party moved from residence to office. Recovery memo Exh. 25 shows recovery of 8 notes and its recording commenced at 12:30 hours. Learned counsel submits that this recovery memo therefore is part of Panchanama (Part-2) and Panchanama (Part-2) is over in the office of Coal Mines Provident Fund, recovery memo at Exh. 25, therefore, is also recorded in CMPF only and not at the residence of accused. He has drawn attention to cross-examination of PW-4 Birader Sinha to show that documents were seized from table of accused by CBI at about 12:30 hours and at that time CBI Inspector, witness PW-4 and Regional Commissioner Shri Verma were present. Other Officers were also present but no outsiders was present. Thus, PW-2 who was working as Assistant Manager in Indian Overseas Bank or Shri Pendhari were therefore not present when second Panchanama was recorded. Learned counsel states that despite this, the signature of both Panch witnesses namely PW-2 Devrao Maudekar, and one Shri G.J. Pendhari appear on Panchanama (Part-2) as also on recovery memo Exh. 25. He therefore claims that documents at Exh. 24 & 25 needs to be discarded as they do not inspire confidence at all.
16. The attention of Court is invited to fact that no inventory of documents allegedly seized from table of accused has been prepared by the ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 7 Cri.apeal609.2015.odt Investigating Officer and no such list is proved before Trial Court. Learned counsel states that in this situation entire exercise undertaken to show that a trap was laid and has succeeded must be disbelieved.
17. He contends that as per version of prosecution the initial demand of bribe was of Rs. 2,000/- and it was brought down to Rs. 800/- during negotiations. However, this fact is also not proved on record.
18. Learned counsel places reliance upon the judgment of Hon'ble Apex Court reported in (2015)10 SCC 152 in the matter of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and anr. to urge that unless and until the demand as such he established, there cannot be any conviction either under Section 7 or under Section 13 of Prevention of Corruption Act, 1988. According to him, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof without proving demand is not sufficient to sustain the conviction. He contends that the appellant/accused has denied the entire episode and as such, the conviction needs to be quashed and set aside.
19. Advocate Mrs. Chandurkar, the learned counsel for respondent/state that after receipt of report at Exh. 12 on 11.10.1996, at about 9:45 a.m., the steps to register FIR and preparatory steps for arranging a trap were undertaken simultaneously. The complaint tendered by PW-1, was registered and the steps in investigation were taken by PW-5 Kanhaiya Sinha immediately. She submits that mention of time as such, in Panchanama (Part-1), or other documents including Exh. 12 is not decisive, PW-2 Devrao Maudekar was called in CBI Office at 10:00 a.m. and this ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 8 Cri.apeal609.2015.odt assertion by him on oath, cannot be lost sight of.
20. She further submits that documents seized on record are duly exhibited as Exh. 17 to 20 and Exh. 44 to 49. There is no challenge to these documents. The contention that marriage had taken place in May 1996 itself has got no bearing on the controversy. Whether advance claimed was legal or otherwise cannot be examined in this jurisdiction. The amount was prayed for by moving application on 2 nd May, 1996, is not in dispute and the fact that amount was not paid till the date of raid is also not in dispute. The complaint has in the meanwhile moved applications pointing out postponement of date of marriage initially to 27.08.1996 and thereafter to 10.10.1996. This postponement again is therefore not relevant. She relies upon evidence of PW-7 Rajesh Visnoi to show that this witness has contacted office of CMPF in the month of November and December 1996 and then seized certain note-sheets vide Exh. 35. She further points out that Exh. 47 - claim register and Exh. 48 - Pay Order register clearly show that appellant/accused was associated with loan case of complainant. He cannot therefore take advantage of the fact that seizure memo has not been exhibited. She points out that fact of seizure is brought on record sufficiently in evidence of PW-4- Birader Sinha. However, on technical ground that Birader Sinha has not signed the document Trial Court held that he could not have proved the contents of seizure memo. She submits that contents that seizure memo became irrelevant movement the above registers and note- sheets are exhibited during the course of evidence. According to her, note- sheets show delaying tactics and the documents demonstrate that though pay order/cheque was ready, it was not made over to complaint deliberately & he ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 9 Cri.apeal609.2015.odt got that cheque two to three days after the trap.
21. According to her, the defence of total denial in such circumstances is of no assistance to accused. The seizure of his shirt is not disputed by him specifically. Not only this fact that amount of Rs. 300/- was taken out from his shirt pocket, is not in dispute. Those notes had phenolphthalein powder and turning of solution colour to purple when hands were tested for phenolphthalein powder, is not in dispute. She contends that hand-wash and shirt wash of shirt of accused clinch the controversy and burden shifted to accused to explain how tainted money came into his shirt pocket.
22. The learned counsel states that neither Investigating Officer nor Panch had any adverse interest against the appellant, and therefore, absence of relevant entries in visit book or then mention of proper details in Panchanama, cannot enure to the benefit of accused. She relies upon the judgment of Hon'ble Apex court reported in (2007) 7 SCC 625 Girja Prasad(Dead) By LRS. Vs. State of M.P.
23. During their arguments both the learned Advocates have invited my attention to various parts of depositions and also to certain precedents. I find it convenient to referred to the same as and when occasions therefor arises in the course of this judgment.
24. It will be appropriate to first consider the technical objection that consent at Exh. 33 is vitiated. Judgment of this Court in case of Nishikant Bhaskarrao Kulkani Vs. State of Maharashtra (cited supra) looks ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 10 Cri.apeal609.2015.odt into this aspect in paragraph 12. In that paragraph, judgment of Hon'ble Apex Court reported in (1997) 7 SCC 622 Mansukhlal Vitthaldas Chavhan Vs. State of Gujrat has been relied upon. This judgment shows that sanction cannot be granted without proper application of mind and public interest as also protection available to public servant need to be kept in mind. The frivolous and vexatious prosecution needs to be avoided. Validity of sanction therefore depends upon the material placed before sanctioning authority and consideration of all material facts and evidence by the sanctioning authority. The order of sanction ex facie must disclosed that sanctioning authority had considered such material. This consideration can be established in Court by producing relevant files demonstrating its consideration by sanctioning authority. In facts before it, this Court has observed that Municipal Council had exercised advisory jurisdiction by passing a resolution that accused No. 1 deserved to be prosecuted. Sanctioning authority there had upheld said resolution and granted the sanction. This Court found that material on record was in-sufficient to show proper application of mind and the authority treated grant of sanction as an idle formality. Learned Single Judge found that it merely acted upon resolution passed by Municipal Council.
25. In matter before me, the authority according sanction has entered witness box as PW-3. The sanction order at Exh. 33 dated 24.04.1997 contains narration of previous history as disclosed in his complaint at Exh. 12 by complainant, fact of trap, successful completion thereof, drawing of Panchanama (Part-1), accused and complainant leaving office complex and going to residential quarters, the raiding party catching accused red handed, the effect of hand-wash test and seizure of currency ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 11 Cri.apeal609.2015.odt notes as also shirt of accused. It also notices commission of an offence under Section 7 and Section 13 (1) (d) of Prevention of Corruption Act, 1988. The authority granting sanction then explains its status vis-a-vis the post held by accused and then accords sanction under Section 19(a) of Prevention of Corruption Act, 1988.
26. This authority in examination-in-chief has pointed out that it received papers, went through it, applied mind and came to the conclusion prima facie that bribe was accepted. This authority proved sanction letter at Exh. 33.
27. The cross-examination of this witnesses shows absence of reference in sanction order to papers received from its office in December 1996, absence of specific mention that complaint of complainant was perused. Authority also accepts that designation of authority was typed with carbon. This witness also accepts that he did not verify allegation against accused from CMPF Office and did not call from comments from said office. He did not annex any documents with sanction letter. The fact that draft sanction order was sent by CBI is also not mentioned in sanction order.
28. This cross-examination does not in any way militate with the facts mentioned in Paragraph 14 about acceptance of bribe and recovery of tainted money from the accused. In paragraph 19 full and careful examination of material in regard to allegations against accused and of circumstances of the case is also mentioned. The cross-examination therefore, does not show that the process of application of mind for grant of sanction under Section 19 is not proper or there is any jurisdictional error or ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 12 Cri.apeal609.2015.odt perversity. Authority granting sanction is not required to consider the probable defence at all. The necessary documents showing involvement or connection of accused with the loan case of complainant were already produced by PW-3 Shri Das. The error noticed by this Court in its reported judgment (cited supra) does not exist in this matter. Therefore, exercise of according sanction vide Exh. 33 in present matter is not vitiated.
29. Coming to the merits of controversy, the defence of present appellant is that of total denial. Answers given by him during the Section 313 Cr.P.C. examination or then suggestion given to witnesses during examination, do not bring on record, any specific defence. Though in answer to last question in Section 313 examination, the accused has stated that he is falsely implicated, he has not chosen to enter witness box and has not examined any witness in defence.
30. During arguments before me, effort has been made to show that Panchanama (Part-2) was not written at one place and it is prepared by way of after thought. Submission is the process of drawing that Panchanama has to begin after 2nd Panch and raiding party entered the premises and accused person is apprehended, red handed. Here time factor mentioned in Exh. 24 & 25 derogates from transparency and vitiates the entire exercise.
31. Exh. 25 is the recovery memo of 8 currency notes and it is recorded on 11.10.1996. It mentions date and time of recovery to be 12:30 hours and place of recovery is shown as the left side upper shirt pocket of accused and the Almirah located in bed-room in quarter No. B-3 at CMPF Complex. This Panchanama is duly proved by the prosecution and cross- ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 :::
Judgment 13 Cri.apeal609.2015.odt examination does not bring on record the fact that it has been falsely prepared.
32. This Panchanama Exh. 25 does find mention in Panchanama (Part-2) Exh. 24. This Exh. 24 is signed by very same Panch witnesses Shri Maudekar, Shri Pendhari. It mentions that recording of this Panchanama Exh. 24 began at 12:30 hours and it was over at 15:00 hours. It is obvious that after receipt of signal when the raiding party visited the flat, first thing to be done was to recover tainted amount and this fact is also mentioned in Exh. 24. This exhibit also mentions that balance amount of Rs. 500/- was in the Almirah in said flat, it also records seizure of said amount under a separate recovery memo which obviously is Exh. 25. Then it points out process of obtaining hand-wash and personal search of accused as also personnel search of complainant. It mentions conversation which was heard by shadow witness Shri Maudekar and exact conversation is also reproduced. After this process is over Panchanama (Part-2) mentions search of table drawer of accused in his office, seizure of documents relating to Provident Fund advance of Keshavrao and a fact that a seizure memo was drawn. This Panchanama (Part-2) therefore, points out steps-wise and stage-wise action by CBI Officers.
33. Fact that seizure of documents was effected from table of accused is also deposed to by Sectional Supervisor Shri Birader Sinha (PW-
4), Trial Court did not exhibit seizure memo because it did not contain his signature. This witness has deposed that no outsiders was present at that time of seizure of documents from table and a specific suggestion given to ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 14 Cri.apeal609.2015.odt him that no documents was seized from table of accused in his presence, is denied by him.
34. The seizure memo therefore has not been exhibited and accused has not relied upon that seizure memo. Accused only relies upon mention of that seizure in Panchanama (Part-2). This Panchanama (Part-2) is signed by Shri Maudekar and Shri Pendhari. Witness Shri Sinha has stated that no outsider was present during that seizure. Accused has not given any specific suggestion to bring on record, the fact that Shri Maudekar and Shri Pendhari were also not present in the office at that time.
35. This technical aspect however, need not detain us. The fact that initial loan application was moved sometime in May 1996 is not in dispute, fact that loan was ultimately received by complaint two or three days after actual raid is also not in dispute. Fact that marriage was already over in May 1996 is brought on record by accused in cross-examination of complaint. The documents like Exh. 15 or Exh. 21, which mention the proposed date of marriage to be 10.10.1996 or 27.08.1996 are also not in dispute. Thus, accused accepts the position that though marriage was over in May 1996, complaint in his applications submitted to CMPF Office vide Exh. 21 declared 27.08.1996 to the date of marriage and by later application at Exh. 15, declared 10.10.1996 to be that date.
36. The two registers in the office of CMPF i.e. Claim Register for October 1996 and Pay Order Register for that month are not in dispute. Relevant entry in claim register dated 01.10.1996 is at Exh. 47 and in pay order register, entry dated 03.10.1996 is at Exh. 48. Witness Shri Ashok ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 15 Cri.apeal609.2015.odt Pohankar (PW-6) has deposed that entries for October 1996 in pay order register are written by accused. The relevant entry has been marked at Exh.
48. This witness has also deposed in Column No. 11 at Exh. 48, there is signature of accused. There is no challenge in cross-examination to this averment. Only suggestion given to this witness is that entry at Exh. 48 is not in handwriting of the accused. However, there is no suggestion given about signature of accused appearing in Column No. 11 in that entry. PW-6 also points out pendency of loan application moved by complainant, its rejection and subsequent developments. It is not necessary to delve more into this aspect. The technical objection that seizure memo has not been exhibited or proved, does not therefore, advance defence of appellant at all. The signature of appellant/accused in Column No. 11 against Exh. 48 shows his association with the process. At Column No. 11, hearding is about initials of dealing clerk. This entry, therefore, brings on record the fact that appellant/accused was the dealing clerk. His signature in Column No. 11 is made on 09.10.1996. As per later at Exh. 50 marriage of daughter of complainant was disclosed to be scheduled on next day i.e. 10.10.1996 and raid has been conducted on 11.10.1996.
37. This necessitates, reference to first document i.e. complaint made by complainant Keshav to CBI vide Exh. 12. This complaint is dated 11.10.1996. Therein he has mentioned previous history and then, he has also mentioned that on number of occasions, he contacted Shri Ravindra Thakre the Assistant Clerk in CMPF Office. He has also stated that Shri Thakre demanded bribe of Rs. 2,000/- and ultimately Shri Thakre declared that he would not accept anything less than Rs. 800/-. He has also declared that he ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 16 Cri.apeal609.2015.odt was called in CMPF Office at 11:00 a.m. with bribe amount. This complaint is signed by complainant and also by two witnesses. The steps to arrange for trap were initiated thereafter. FIR at Exh. 40 mentions of date and time of report as 9:40 a.m. Thus it only shows that this intimation was received by the Special Police Establishment at Nagpur at 9:40 a.m. in the morning. PW- 5 Kanhaiya Sinha Inspector with CBI has stated that after receiving a complaint, he registered crime and called Panch witnesses.
38. Fact that the accused had called complainant at 11:00 a.m. in the office, already appears in Exh. 12. In this situation, if steps to draw prepartory Panchanama (Part-1) were initiated simultaneously to save the time, no fault can be found it. Shri Kanhaiya Sinha has recorded that this Panchanama (Part-1) commenced at 10:00 a.m. and was concluded at 11:00 a.m.
39. During arguments, counsel for appellant in order to point out the inconsistent mention of time, has relied upon the written notes of arguments which were filed before Trial Court at Exh. 58. Attention was drawn to at Para 'e'. It is to be noted that the Panchanama (Part-2) shows that at 11:55 hours, accused and complainant were seen coming out of office complex and proceeding to residential quarters. Other details in this respect are already stated above by me.
40. Only inconsistent version brought on record is by PW-4 Birader Sinha, who at the time of the deposition, had already retired. In 1995-96, he was working at Sectional Superintendent in CMPF Office. Four to five employees i.e. accused, one Bawankar & two-three ladies were working in ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 17 Cri.apeal609.2015.odt the office. He claims that he attended office at about 10:30 a.m. and at about 11:00 a.m. two or three persons entered their office, one person came to his Section and disclosed that they were searching for some body. In the meanwhile Birader Sinha was called for by Regional Commissioner and therefore, he went to that officer. When he returned back, he did not see anybody. At 11:15 a.m. he heard a loud voice in his office and people were crying that accused Rajendra Thakre was caught.
41. This witness, therefore, points out that enquiry about some person were meet him at 11:00 a.m. and than he left the office to attend to Regional Commissioner, he came back within 15 minutes and learnt about the raid. At that time, there was nobody in the office.
42. This person, therefore, does not state that raid was conducted in the office. Who were the people making inquiry or shouting in loud voice is not clear. Accused has not cross-examined PW-4 in this respect. His deposition and time factor therefore is irrelevant and does not bring on record any material inconsistency.
43. Depositions of complainant (PW-1) Keshav (PW-2) Maudekar and PW-5 Kanhaiya Sinha bring on record, the relevant facts. The business of complainant Keshav in the CMPF Office is not in dispute, fact that he was disparately after the loan amount can be seen from his applications mentioned supra. Fact that he got actual disbursement after raid is also brought on record. He has pointed out the demand and PW-2 Maudekar shadow witness has also supported him. The actual conversation containing it forms part of Panchanama (Part-2).
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Judgment 18 Cri.apeal609.2015.odt
44. The acceptance of amount of Rs. 800/- by accused is proved by establishing identity of 8 notes of Rs. 100/- denomination each. Three notes are seized from shirt pocket on person of accused and 5 notes were seized from Almirah in his bed-room as indicated by him. The defence of accused is of total denial, however, he has not pointed out why he would be falsely implicated, he has also not pointed out why the Police Inspector PW-5 would proceed to falsely implicate him. There is absolutely no reason for shadow witness Shri Devrao Maudekar (PW-2) to depose falsely against accused.
45. The perusal of provisions of Section 20 of the Prevention of Corruption Act, 1988, shows that it prescribes a presumption where public servant accepts any undue advantage. It stipulates that where in any trial for offence punishable under Section 7, it is proved that the public servant accused of such offence has accepted the amount from any person, unless the contrary is proved, it shall be presumed that it was accepted as a motive or reward under Section 7 for performing the public duty. Though in present facts, the accused has taken up plea of false implication and total denial, he has not come up with a case that shirt seized and produced before Trial Court did not belong to him. He has not explained how tainted notes reached pocket of that shirt or than Almirah in his bed-room. In the light of Section 20, his defence of total denial, therefore, is unsustainable.
46. Reliance by accused on judgment of Hon'ble Apex Court in the matter of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and anr. reported in (2015) 10 SCC 152 to urge that demand and acceptance must be proved by cogent evidence and mere ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 19 Cri.apeal609.2015.odt acceptence of amount cannot be seen as illegal gratification in present facts is misconceived.
47. The judgment of Hon'ble Apex Court in the matter of Baldev Singh Vs. State of Harayana, reported in (2015)17 SCC 554 is cited by respondent to submit that deposition of witnesses recorded in official capacity cannot be labelled as unworthy as he is interested evidence. This judgment, however, considers credibility of evidence of a police officer. It is observed that merely because of his position as police officer, his evidence cannot be discarded , Hon'ble Apex Court, however, has clarified that prudence required careful scrutiny & independent appreciation of such evidence.
48. Reliance by accused on the judgment of Hon'ble Apex Court in the matter of Vinod Kumar Vs. State of Punjab, reported in (2015)3 SCC 220 is more apt. In paragraph No. 21 to 24 Hon'ble Court looked into the evidence of trap witnesses and in paragraph 24 concluded that trap witness is interested witness and his testimony needs to be accepted and relied upon after due corroboration. Few more judgment are cited by parties for this purpose however, in present matter, I do not find it necessary to dwell on it.
49. Judgment of Hon'ble Apex Court in the matter of Girja Prasad (Dead) By LRS Vs. State of M.P., reported in (2007)7 SCC 625 deals with provisions of Prevention of Corruption Act, 1947. There presumption provided was under Section 4 and prerequisite for invoking it has been looked into. The recent judgment, reported in (2018)9 SCC 242 - State of Gujrat Vs. Navinbhai Chandrakant Joshi and Others deals with the ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 ::: Judgment 20 Cri.apeal609.2015.odt provisions of Section 20 of Prevention of Corruption Act, 1988, and it is observed that once possestion of bribe money is established, burden shifts to accused to rebut it and standard to be applied is of preponderance of probabilities.
50. As already found by me supra, accused (present appellant) has not explained how those 8 tainted notes with phenolphthalein powder could reach his shirt pocket or than Almirah in his flat. During arguments, it could be noticed that efforts were made to point out how there is variance even in the process of given signal. Submission is at one stage complainant says that he gave signal to first Panch Shri Maudekar while at the other place, he mention that signal was given to raiding party. This contention cannot in present facts, advance the case of appellant at all. Perusal of Panchanama (Part-1) and Panchanama (Part-2) shows that preparations were made to trap accused on his table. However, he told complainant to come with him to his residential flat situated in a different building in vicinity, they therefore left the office and went to residential flat. Accused also told Shri Moudekar not to accompany them. This unforeseen situation therefore may have created some practical difficulties. Deposition of PW-2 Shri Maudekar shows, that he managed to hear the conversation by standing near window of a flat and he could also see the signal given by complainant after coming out of flat. Raiding party had also taken position and saw the signal. Small inconsistenties like one mentioned supra, therefore, are not fatal.
51. Here failure of accused to discharge burden cast upon him by Section 20 of Prevention of Corruption Act, 1988, clinches the controversy. ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 :::
Judgment 21 Cri.apeal609.2015.odt As accused has not furnished any explanation, no fault can be found with the judgment of conviction. There is no substance in the appeal. Appeal is accordingly dismissed.
52. The learned counsel for appellant seeks continuation of bail for further period of 12 weeks. This request is opposed by Adv. Mugdha Chandurkar for respondent.
53. As the matter is old, both the learned Advocates have assisted the system by appearing in vacation and arguing the matter threadbare. The matter otherwise would not have been heard for long time, after reopening of Court. In this situation, I am inclined to continue the bail orders passed by this Court on 24.11.2005.
54. The said interim protection given to the appellant/accused shall remain in force for a period of six weeks, after the appellant receives certified copy of this judgment delivered today. It shall cease to operate automatically thereafter.
55. Thus, after the said period appellant shall be duty bound to surrender to his bail bounds, if there are no court orders to the contrary.
56. The appeal is accordingly dismissed.
JUDGE Prity G. ::: Uploaded on - 31/05/2019 ::: Downloaded on - 31/05/2019 22:42:48 :::