Bombay High Court
The State Of Maharashtra vs Rukmini Laxman Kashid on 6 November, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/21 cr.apeal-1218-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1218 OF 2013
State of Maharashtra .. Appellant
Vs.
Rukmini Laxman Kashid .. Respondent
......
Mr.A.R. Kapadnis, APP for Appellant - State.
Mr.Jayant Bardeskar, Advocate for Respondent.
......
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : OCTOBER 23, 2020
JUDGMENT DELIVERED ON : NOVEMBER 06, 2020
JUDGMENT :
This Appeal has been preferred by invoking Section 378 of Criminal Procedure Code, challenging the judgment and order dated 26th June, 2013, passed by Special Judge, Pune, in Special Case No.46 of 2009, whereby the respondent was acquitted of the ofence punishable under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act ("PC Act", for short), 1988.
Digitally
signed by
RajeP. RajeP. Aher
Date: 2 The case of the prosecution can be summarized as
Aher 2020.11.07
11:44:45
+0530 under:
(i) The accused was serving as Nimtandar in the ofice of
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TILR Rajgurunagar, Pune. Property bearing CTS No.736 was purchased by Smt.Satyabhama Pawar under registered sale deed dated 27 th April, 2008. Complainant is the son of Satyabhama Pawar. Application dated 29 th August, 2008, was submitted by complainant in the ofice of accused for property card of said property, which was pending.
(ii) Complainant visited ofice of TILR repeatedly and requested the accused to issue property card. However, it was not issued. On 7th January, 2009, accused made demand of bribe of Rs.5,000/-, from the complainant for issuing property card. After negotiation, the amount was reduced to Rs.3,000/-, to be paid in three installments.
(iii) On 9th January, 2009, the complainant approached ACB Ofice Pune and lodged the complaint. Panch witnesses were called. It was decided to lay a trap. Currency of Rs.1000/-, was produced by the complainant. Anthracene power was applied to the currency notes. Appropriate instructions were given to the complainant and panch witnesses.
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(iv) Panch witness Dattatrya Sonawane was instructed to accompany the complainant and another panch Smt.Kumbhar was instructed to remain with raiding party. The complainant was instructed to record conversation with the accused. Tap-recorder was provided to him. Pre- trap panchanama was recorded.
(v) Complainant and others left ACB ofice and reached near the ofice of TILR. Complainant and P.W.2 entered into the ofice of the accused. Complainant pointed out accused to P.W.2. Accused demanded the amount. Complainant told her that he would bring the amount within short time. Both came out from ofice. Recorded conversation confirmed the demand. Again complainant and P.W.2 entered into the ofice of accused at 15:35. The accused demanded the amount. It was given to her. The accused accepted the amount. Complainant gave signal to raiding party. The raiding party rushed to the spot. Accused was apprehended. Bluish shining was noticed at the hands of the accused and table. Recorded conversation was heard. Separate panchanama regarding voice of accused was recorded. Documents were forwarded for sanction. The rpa 4/21 cr.apeal-1218-2020.doc sanctioning authority granted sanction. Accused was chargesheeted.
3 Prosecution examined four witnesses. P.W.1 Nitesh Pawar (complainant), P.W.2 Dattatraya Sonawane (Panch), P.W.3 Sambhaji Shinde (Sanctioning authority) and P.W.4 Smt.Radhika Phadke (Investigating Oficer). The witnesses were cross- examined by defence. Statement of the accused was recorded under Section 313 of Cr.P.C.
4 Judgment of acquittal given by the trial Court is primarily based on following findings:
(a) Sanction order seems to have been issued by P.W.3 mechanically and without applying his mind.
(b) Except testimony of complainant and report filed by him, there is nothing before the Court to prove prior demand dated 7th January, 2009.
(c) Accused was not present in her ofice and on oficial tour on 7th January, 2009. The tour programme of accused for rpa 5/21 cr.apeal-1218-2020.doc the month of January 2009 produced by prosecution shows that accused was deputed in village Kanhersar on 7 th January, 2009 for measurement of land of Shri Kantilal Sonawane.
(d) The conversation of complainant on the proof of demand cannot be accepted.
(e) None-existence of motive falsify the prosecution case.
There was limited role to the accused in the Mutation proceedings of the complainant. Application dated 29 th August, 2008, was pending in the ofice of TILR and Index - 2 extract was not produced by him along with his application, till 28th November, 2008. There are material contradictions in the evidence of complainant and P.W.2, which falsifies the case of demand and acceptance.
(f) The evidence of acceptance of bribe is not free from doubt.
As per conversation of complainant, tainted note was accepted by the accused and she kept it in a compass box lying on the table. According to P.W.2, the bribe notes were accepted and kept on the table. The notes were seized from rpa 6/21 cr.apeal-1218-2020.doc the table. Compass box was not verified under ultra-violate rays. Evidence on record shows material contradictions between the prosecution witnesses.
5 Learned APP submitted that demand has been proved. Acceptance of tainted currency notes is also proved. The accused has not rebutted the presumption under Section 20 of P.C. Act. Trial Court has not appreciated the evidence properly. There was no reason to discard the evidence. Trial Court in paragraph 19 has arrived at the finding that the evidence on record in relation to acceptance of bribe amount and its recovery is not realistic. The said finding is contrary to evidence. Trial Court failed to consider pre-trap and post trap panchanama. The script of conversation refers to demand by the accused. There was no reason to discard the evidence of complainant and P.W.2, panch witnesses. There is corroborative evidence for demand and acceptance of bribe. The witnesses have supported the prosecution case. There is no infirmity in the sanction order. The evidence of P.W.3 and the sanction order clearly shows that there was application of mind.
6 Learned advocate for the respondent submitted that the trial Court has taken into consideration all the aspects and rpa 7/21 cr.apeal-1218-2020.doc after analysing the evidence gave a finding of acquittal, which does not require interference. P.W.3 has admitted that the work of notice was pending before the higher authority. The conversation between the complainant and the accused establish that there is no demand. The voice sample as well as the alleged tape- recorded conversation was not forwarded to CFSL. The evidence of complainant is doubtful. The first demand is not corroborated. The accused was not present in ofice on 7th January, 2009 The compass box in which the currency notes were kept was not seized. Learned advocate relied upon the decision of the Apex Court int eh case of P. Satyanarayan Murthi V/s. District Inspector of Police, State of Andhra Pradesh and Another 1. In the said decision, it was observed that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, would not be suficient to bring home the charge under Sections 7 and 13 of the PC Act. Reliance is also placed on decision of this Court in the case of Gulabdatagir Ramzan Inamdar & Anr. V/s. State of Maharashtra2. Learned counsel pointed out the observation of this Court in paragraph 29 of the decision, wherein, it was observed that the audio cassettes were sent for forensic 1 (2015) 10 SCC 152 2 2019(2) MH.L.J.(Cri.)462 rpa 8/21 cr.apeal-1218-2020.doc examination to ascertain whether voice in question matches with that of the accused. However, the report was not produced. No reason was assigned for its non production. The action on the part of the prosecution withholding the valuable evidence, invites adverse inference against the prosecution.
7 It is settled principle of law that generally the order of acquittal cannot interfered with since presumption of innocence of the accused, is further strengthened by acquittal. Appellate Court may interfere only when there are compelling and substantial reasons for reversing decision of acquittal. The Court can interfere with acquittal which is grossly unjustifiable and against legal ethics. The Appellate Court in Appeal against acquittal has to proceed more cautiously and only if there is absolute assurances of the guilt of the accused upon the evidence on record, the order of acquittal could be interfered with. If two findings are reasonably possible on the basis of the evidence on record, the view which favours the accused must be accepted. Similarly, if view taken by the trial Court while acquitting the accused is possible, reasonable view of the evidence on record, the High Court ought not to interfere with in such an order of acquittal merely because it is possible to take contrary view.
rpa 9/21 cr.apeal-1218-2020.doc 8 I have perused the evidence on record. I do not find
that the impugned judgment and order of acquittal passed by the trial Court needs interference. The infirmities considered by the trial Court indeed creates doubt about the prosecution case and hence, the Court has rightly acquitted the accused. P.W.1 is the son of Smt.Satyabhama Pawar. She had applied to the ofice of the land record for issuance of property card on 29 th August, 2008. According to complainant, he used to visit the ofice of the accused. However, the accused used to state that she is burdened with work. On 7th January, 2009, P.W.1 met accused. She stated that she would have done the work if money was paid to her. She demanded Rs.5,000/-, for work. The complainant pleaded the he is not in a position to give amount. The accused state that unless Rs.3,000/- was given, she won't do the work. The accused then told the complainant to pay the amount in three installments of Rs.1,000/-, each in three stages. Hence, the complainant approached ACB and lodged the complaint. Panchas were called. Tape recorder was given to him. It was decided to lay a trap. Panch no.1 and the complainant entered into the ofice of the accused. The accused inquired with him as to what was his work. The accused told him to come after half an hour. He came out.
rpa 10/21 cr.apeal-1218-2020.doc Conversation recorded was heard. Thereafter again on 3:45 p.m., the complainant and panch witnesses went to the ofice of the accused. According to him, the accused stated that if he has paid the amount he should give it to her. He took out currency note of Rs.1,000/-, and had given it to accused. She accepted the said amount and kept the same in the compass box, which was on the table. Signal was given to the raiding party. They reached the ofice. Bluish shining was noticed on the finger tip and pocket of the shirt of the complainant. In cross-examination, it was stated that he had submitted Index II extract again because it was demanded. He do not remember as to when he had given to Index II extract when and at what time it was given to the accused. The accused told him that she is holding charge of three persons and not getting time to do his work. It was the work of the accused to make entry and keep it before the higher oficer for approval. It was the work of city survey oficer to sanction or reject the entry. While taking entry, it is necessary to issue notices and call for objections. The entry was taken within eight days after the trap. Bribe was demanded at noon time on 7th January, 2009. He went to the ofice of ACB on 9th January, 2009. On the day of trap, the accused demanded money, but, he did not give the amount to her at that time and told her that he would bring the amount from his rpa 11/21 cr.apeal-1218-2020.doc house within half an hour. There was no panchanama of verification.
9 P.W.2 Dattatraya Sonawane is the panch witness. He stated that trap was arranged. Anthracene powder was applied to the currency notes produced by the complainant. Necessary instructions were given to panchas and complainant. The complainant was instructed to give bribe amount only on demand and to give signal after acceptance of bribe. Pre trap panchanam was recorded. The members of raiding party proceeded to ofice of the accused. Complainant and P.W.2 entered into the ofice of the accused. The complainant state that he has brought Rs.1000/-, as asked by her. Accused told him to give the amount. Complainant had inquired about his work. On inquiry, the accused demand Rs.2000/-. Complainant stated that he was not in a position to arrange Rs.2000/- and he can give Rs.1000/-, by collecting the same from his relatives. He stated that he will bring the amount in short time and came out. The conversation was heard. Again instructions were given to complainant and panchas. Both of them again went to the ofice of accused. Complainant told the accused that he had brought Rs.1000/-. Accused told him that if he has brought the money, he should give rpa 12/21 cr.apeal-1218-2020.doc it to her. The complainant handed over the amount, which was accepted by the accused and kept it on her table. The complainant gave signal to raiding party. Accused was apprehended. Amount was recovered. Procedural requirements for trap were conducted. Trap panchanama was recorded. Voice of the accused was taken on 10 th January, 2009. In cross- examination, he stated that the accused did not demand the amount immediately when he met her. In the initial talk the accused told him that his proposal is kept before senior. He was told to come for his work on Monday. There were no clerk, peon outside the ofice of the accused. At that time, the accused did not demand money immediately at the moment they came with her. The talk was going on for half and hour. The accused has stated that she is over burdened and she is handling charge of three posts and the work of the complainant will be done in routine course. When the accused was caught, she stated that she has not demanded and accepted the amount. There was anthracene powder found everywhere. There were files on the table, but, anthracene powder was not found on the files. It was found on the portion of the table which was infront of the accused. Compass box was not on the table. Anthracene powder was seen on the area of one feet on the table.
rpa 13/21 cr.apeal-1218-2020.doc 10 P.W.3 Sambaji Kashinath Shinde is the sanctioning
authority. He was working as Deputy Director Land Records, Pune. He received papers of the accused from ACB on 30 th September, 2009. He went through the papers and found that it is a fit case to accord sanction. He personally dictated the sanction. He signed the same. In cross-examination, it was stated that it is necessary to afix original papers with the application for mutation is filed. Nimtandar has authority only to put note on such application. The said note is to be kept before the head of the ofice. Before sanction of note, notices cannot be issued. The note was sanctioned by the head of the ofice on the day of trap. Proforma of sanction was sent to him. He did not carry separate inquiry with respect to the fact as to whether the work of complainant was pending with the accused on the day of incident. 11 P.W.4 Smt.Radhika Phadke, is the investigating oficer. She conducted investigation. She has furnished details of the events from lodging of complaint till completion of investigation. She stated that there is no documentary evidence produced when the charge-sheet regarding taking of cassette from the ofice. There was no separate verification of demand but it was done during the trap. The file of the work of the complainant was on rpa 14/21 cr.apeal-1218-2020.doc the table of Shri Sonawane i.e. TILR and it was seized from there. She did not record the statement of the persons in the ofice on the same day. They were recorded subsequently. At the time of trap, no file of the work of the complainant was found on the table of the accused. She did not carry investigation regarding the point that there was no progress in the work of complainant as required documents were not complied with. The accused was having charge of three posts at a time. Nothing objectionable in connection of the complainant was found on the table of the accused. All the files were on the table of Shri Sonawane. No authority letter was given by the mother of the complainant to complainant.
12 The prosecution case proceeds with the alleged demand by the accused on 7th January, 2009 on the basis of which the complaint was lodged on 9th January, 2009. This allegation is based on testimony of complainant and report filed by him, which is not corroborated by any other witness. According to complainant, the accused had demanded Rs.5,000/-, from him by way of gratification other than remuneration. The amount was reduced to Rs.3,000/-, and complainant was told to give Rs.1,000/- on Friday and Rs.1,000/- may be given after issuance rpa 15/21 cr.apeal-1218-2020.doc of notice and after recording statements, balance amount of Rs.1,000/- be given to her. The prosecution has produced documents which were marked collectively at Exhibit-25, which includes muster roll maintained in the ofice of accused. The said documents show that the accused was not present in her ofice on 7th January, 2009 , and, she was on oficial tour. The tour programme of the accused for the month of January 2009 produced by prosecution show that she was deputed in village Kanhersar on 7th January, 2009 for measurement of land of Shri Kantilal Sonawane. The accused had denied her presence in the ofice on 7th January, 2009. Thus, the documents produced by the prosecution itself falsifies the claim of the complainant about his visit to the ofice of accused and the demand made by the accused on 7th January, 2009. The conduct of the complainant thus creates suspicion and his evidence is required to be considered cautiously with regards the subsequent demand and acceptance. Thus, the document exhibited in evidence establishes that the version of the complainant with regards to alleged demand of 7th January, 2009, which is the first demand is proved to be false. In the cross-examination, the complainant has stated that the earlier demand of bribe on 7th January, 2009, was made in noon time. In the complaint Exhibit-10, it is alleged that such rpa 16/21 cr.apeal-1218-2020.doc demand was made at about 4:00 p.m. on 7th January, 2009. 13 Evidence of P.W.3 show that there was limited role for accused in the process of Mutation Proceedings of complainant's mother. Application by complainant's mother was dated 29 th August, 2008, was pending in the ofice of TILR at Rajgurunagar. The accused was authorized to prepare necessary note on the application. P.W.3 has stated that note was kept by accused before superior oficer and it was not possible to issue notice unless the note was approved by the superior of accused. The draft conversation show that accused informed to complainant that the necessary note has been put before her senior and he would get the property card after orders by seniors. The accused also instructed the complainant to go. The voice sample were obtained during the investigation. The alleged conversation was reproduced by way of script. The prosecution is silent with regards to experts opinion, recorded conversation and the voice sample of accused obtained during investigation. Investigating oficer has not stated whether the conversation/voice recording was sent to obtain opinion. Whether any opinion was received in the event it was forwarded to CFSL. Silence of prosecution is rpa 17/21 cr.apeal-1218-2020.doc suficient to draw adverse inference against prosecution. It is pertinent to note that the conversation between accused and complainant at the time of trap was not recorded in tape recorder which also afects the prosecution case. There is no opinion of the expert determining that the voice sample contain the voice of the accused and the complainant.
14 The evidence does not disclose that work of complainant was pending on the day of trap. There are material contradictions in the evidence of complainant and P.W.2. The panch witness P.W.2 was to accompany the complainant in the ofice of accused. Complainant has stated that on the day of trap when he made inquiry about his work, accused told him to go and assured that his work would be completed. However, evidence of P.W.2 is silent on this point. Complainant stated that accused made a demand of Rs.2000/-. If after the negotiation bribe amount was fixed between the complainant and accused, it was not necessary for the accused to again canvas the same issue before the accused in her ofice. As per evidence of complainant, accused did not make demand and instructed him to go. The accused also told the complainant that necessary note was placed before the superior oficer and assured complainant that his work will be completed. This creates doubt about the entire case of the rpa 18/21 cr.apeal-1218-2020.doc prosecution. It is also relevant to note that P.W.4 has clearly stated that TILR had given copies of documents to him. Those documents were with TILR. The file of the work of the complainant was on the table of TILR and it was seized from there. This would indicate that the documents were already forwarded to TILR and nothing was pending before the accused. 15 As per conversation of complainant and P.W.2, they entered into the ofice of accused twice. Initially complainant made inquiry about his work with accused and left the ofice under the pretext to bring the amount. Subsequently, at 3:45 p.m. again complainant and P.W.2 entered the ofice of accused and gave tainted notes to her after demand. Undisputedly, there is no separate demand verification panchanama. On perusal of pre trap panchanama and post trap panchanama it is apparent that on receipt of the complaint by ACB, steps were taken immediately to lay trap. Panchas were called. Anthracene powder was applied. Instructions were given to the complainant and the panch witnesses. The complainant was instructed that the amount is to be parted only after the demand by the accused. P.W.2 was instructed to be with complainant. Steps were taken to proceed for trap. However, the complainant and the panch witnesses rpa 19/21 cr.apeal-1218-2020.doc visited ofice of the complainant and on alleged demand, the complainant told the accused that he would make arrangement for the amount. Normally, it is decided to verify the demand and if it is successful, a panchanama is recorded. The manner in which all the required steps were taken would indicate that the raiding party proceeded for trap and not for verification of demand. If the accused had demanded money, as alleged by the complainant on his prior visit, the inquiry with regards to the work and the alleged demand once again on 9 th January, 2009 appears doubtful. There is variation in the evidence of P.W.1 and P.W.2 with regards to incidents of verification of demand. The trap panchanama is silent as to what happened when the bribe was accepted. It do not mention role of panch witness who was accompanying complaint during acceptance of bribe by accused. 16 Trial Court has noted that the complaint was allegedly recorded at 11:00 a.m. and the pre trap panchanama was drawn between 11:30 a.m. to 01:30 p.m. and post trap panchanama was recorded between 01:35 p.m. to 08:30 p.m. It is surprising that the recording of post trap panchanama was initiated by 01:35 p.m. when the raiding party has returned ACB ofice at 01:30 p.m. and arrived at Rajgurunagar after one hour. It appears that post trap panchanama was recorded after rpa 20/21 cr.apeal-1218-2020.doc convenient intervals without recording exact timing of each part of the panchanama. It is not possible to ascertain as to exactly when and which portion of post trap panchanama was recorded by panch witnesses. The post trap panchanama is not free from doubt.
17 As per version of complainant, when the accused made demand of Rs.2000/-, he told her that he has brought Rs.1000/-. Complainant came out of the ofice as he was asked to come after half an hour. P.W.2, however, gave diferent story. He stated that complainant told the accused that he does not have Rs.2,000/-, and can give Rs.1000/-, by collecting the same from relatives and others. Thus, version of both the witnesses are contradictory to each other. According to complainant, he was asked to come after half and hour with amount by the accused. Whereas, according to P.W.2, the complainant left ofice of accused to collect the amount from his relatives and friends. On the basis of the said infirmities, the trial Court gave finding that the witnesses are not trustworthy. I do not find any reason to take a diferent view.
18 Trial Court has also observed that the evidence to prove acceptance of bribe amount is not free from doubt. The rpa 21/21 cr.apeal-1218-2020.doc tainted note was accepted by the accused and it was kept in compass box lying on the table. This as per the evidence of complainant. However, P.W.2 stated that the accused accepted tainted notes and kept it on the table. According to P.W.4, the tainted notes were seized from the table. Compass box was not found on the table. Evidence of P.W.2 and P.W.4 indicate that the compass box was not verified under ultra violate rays. It was not seized. Anthracene powder was noticed on the table. There is no reason to convert the finding of acquittal into conviction. Hence, the Appeal challenging the impugned judgment and order is devoid of merits and deserves tobe dismissed. 19 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Appeal No. 1218 of 2020, stands dismissed and disposed of accordingly.
(PRAKASH D. NAIK, J.)