Bombay High Court
Suresh Pandurang Sonkusare vs State Of Mah. Thru. P.I. (Acb) ... on 12 January, 2017
Author: P.N.Deshmukh
Bench: P.N.Deshmukh
Apeal 837.08 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.837 OF 2008.
APPELLANT: Suresh Pandurang Sonkusare,
aged about 48 years, Occu: Govt.Service,
R/o Govindpur, Tq.Nagbhid, Distt.Chandrapur.
: VERSUS :
RESPONDENT: The State of Maharashtra
through Police Inspector, Anti-Corruption
Bureau, Chandrapur.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.R.P.Joshi, Advocate for the appellant.
Mr.V.P.Gangane, Addl.Public Prosecutor for the State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM
: P.N.DESHMUKH, J.
DATED: 12th JANUARY, 2017.
ORAL JUDGMENT :
1. This appeal is directed against judgment and order dated 28th November, 2008 passed by learned Special Judge, Chandrapur in Special Case No.14 of 2004, convicting the appellant/accused for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 and sentencing to suffer rigorous imprisonment for six months and to pay fine of Rs.100/-, ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 2 in default to suffer Simple Imprisonment for fifteen days and under Section 13(1)(d) punishable under Section 13(2) of the said Act, sentencing to suffer rigorous imprisonment for one year and to pay fine of Rs.200/-, in default to suffer Simple Imprisonment for one month.
2. In brief, the case of prosecution is that at the time of incident appellant was working as a Talathi at Govindpur, Tq.Nagbhid, Distt.Chandrapur. Complainant Nandkishor Borkar is resident of Yeroli who had purchased agricultural land from one Chhayabai Bodhe vide sale-deed, Exh.10 of which he wanted mutation entry to be made in respect of said transaction in his name in 7/12 extracts, and for that purpose applied on 21 st September, 2003. When the application was made, one Motghare was Talathi who, pending said application, was transferred and appellant took over the charge, who was thus handed over with the application and the necessary documents for the purpose of making necessary entry.
::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 3
3. It is the case of prosecution that inspite of complainant contacting appellant for his work on various times, it is alleged that appellant refused to take necessary entries in the mutation register without payment of money. It is the case of prosecution that on 12th November, 2003 when complainant contacted appellant he made a demand of Rs.1000/- which was negotiated to Rs.500/-. As complainant was not willing to make payment of bribe amount, on 13th November, 2003 he visited office of Anti Corruption Bureau and lodged his complaint, Exh.13. Complainant produced currency notes of Rs.500/-, consisting of five notes in the denomination of Rs.100/- each. Phenolphthalein powder was then applied on the currency notes and said notes were kept in the shirt pocket of the complainant in the presence of panchas and necessary instructions were given to complainant as well as panchas. Pre-trap panchanama of all these facts was drawn vide Exh.19. Thereafter, all the members of raiding party along with panchas left the office of Anti Corruption Bureau for Govindpur. ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 4
4. It is further case of prosecution that as per instructions given by Investigating Officer, complainant and panch Ravindra Wasekar reached to the office of appellant and enquired with him about his work of mutation entry, upon which appellant asked complainant if he has brought the amount to which complainant replied in affirmative. It is further case of prosecution that on appellant's demanding amount, complainant paid the same which was accepted by appellant and had kept it on his office table. Thereupon, complainant and panch came out of the office of appellant and complainant gave proposed signal, upon which members of raiding team arrived in the office of appellant and apprehended him, when appellant was saying that he was deceived by complainant as he had never demanded any bribe and he should be saved. The amount of Rs.500/- found on the table of the appellant was seized. Appellant was asked to dip his right hand fingers in the solution of Sodium Carbonate and the colour of the solution was changed to purple. Similarly, left hand fingers of the appellant were tested under the fresh prepared solution of Sodium Carbonate when it turned into purple colour. ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 5 Accordingly, post-trap panchanama was drawn vide Exh.24 on the spot. Thereafter, on the basis of report lodged with Nagbhid Police Station by PW 4 Jabbar Khan, Dy.S.P.,Anti-Corruption Bureau, offence came to be registered vide Crime No.2068 of 2003 against the appellant vide Exh.42 and was further investigated, during the course of which, Investigating Officer obtained Sanction, Exh.27 granted by PW 3 Pradipkumar Dange, to prosecute the appellant and on completion of investigation filed charge-sheet before the Special Court.
5. Charge came to be framed against the appellant vide Exh.5 to which he pleaded not guilty and claimed to be tried. It is the specific case of appellant that from 7 th of October, 2003 to 3 rd of November, 2003 he was present in the office at Brahmapuri to update the record of agricultural land. On 4th November, 2003 he returned back to Govindpur and for taking necessary entry in 7/12 extract as per application filed by complainant, issued notice to him. After issuing notice, he was supposed to wait for fifteen days as per rule to make mutation entry. However, before expiry of ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 6 said period of fifteen days, on 13 th November, 2003, complainant came in his office and forcibly thrusted currency notes in his hand saying that Revenue Inspector told him to approach the appellant. It is further case of appellant that upon this, he informed complainant that he should go to Revenue Inspector and on that count quarrel took place between him and the complainant. Thus, it is a specific case of appellant that since period of fifteen days was yet to complete from the date of his issuing notice on 4 th November, 2003, there was no reason for him to take mutation entry before that period. However, applicant falsely involved appellant on 13th November, 2004, to have allegedly demanded and accepted bribe for said purpose.
6. Prosecution to substantiate the Charge has commenced its evidence by examining PW 1 Nandkishor Borkar, complainant, PW 2 Ravindra Wasekar, first panch, who has accompanied complainant to the office of appellant and has proved pre-trap panchanama, Exh.19, post trap panchanama, Exh.24, PW 3 Pradipkumar Krishnarao Dange, Sanctioning Authority, who has ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 7 proved Sanction, Exh.27 and concluded its evidence on examining PW 4 Jabbar Immam Khan, the Investigating Officer.
7. The learned Trial Court on considering the evidence and documents on record, convicted the appellant as aforesaid, hence this Appeal.
8. Heard Shri R.P.Joshi, learned counsel for the appellant and Mr.V.P.Gangane, learned Additional Public Prosecutor for the State.
9. Learned counsel for the appellant has submitted that there is absolutely no evidence to establish fact of appellant demanding bribe or accepting the same as there is no convincing evidence to that effect brought on record. In fact, it is demonstrated as to how there was no any occasion for the appellant to demand bribe as it has come on record that after issuing necessary notice on 4th November, 2003 for effecting mutation entry in government record, it was necessary for the ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 8 appellant to give fifteen days' time and to make such entry only after lapse of such period if no objections are received in between and thus, has submitted that as according to the case of prosecution it is alleged that on 13th November, 2003 appellant had demanded bribe and agreed to accept the same, said case does not appear to be convincing at all for above reasons. It is also contended that as per the settled legal position mere recovery of tainted notes from possession of accused is not sufficient to establish his guilt, particularly in the absence of convincing evidence on the point of demand and acceptance. It is, therefore, prayed that appeal be allowed.
10. Per contra, learned Additional Public Prosecutor has supported the impugned judgment and by referring to the evidence of complainant PW 1 Nandkishor Borkar and PW 2 Ravindra, the first panch, has submitted that since their evidence corroborates with each other on material aspects of demand and acceptance, Charge levelled against applicant can be said to have established beyond reasonable doubt. It is, therefore, prayed that ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 9 appeal be dismissed.
11. In the light of submissions advanced as aforesaid, from the evidence of complainant it is revealed that on 21 st September, 2003, vide Exh.11, he had applied for mutation when one Motghare was working as a Talathi. Subsequently, he was transferred and the appellant took his charge. When appellant visited his village for some programme of Grampanchayat, complainant again submitted application, Exh.11 to appellant and thereafter met him on 2 - 4 occasions when appellant is stated to have demanded money from complainant saying that he would not effect mutation entry unless he is paid.
Complainant further stated that on 4th November, 2003 he visited appellant's office when he demanded Rs.1000/- as bribe which was negotiated to Rs.500/- and was agreed to be accepted within 2 or 4 days. As per his evidence, on 13 th November, 2003, he visited office of Anti Corruption Bureau and lodged his report vide Exh.13 and produced currency notes of Rs.500/- consisting of five notes in the denomination of Rs.100/- each and further ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 10 deposed about officers applying some powder to said notes and of complainant visiting to office of appellant on the same day.
12. On the point of incident, it is stated that on reaching to the office of appellant, he was present to whom complainant asked to do his work of mutation and take the money. He has further stated that on his enquirying about mutation entry, appellant asked if he had brought money to which he replied in affirmative when accused demand the same and was accordingly paid by complainant by removing the tainted notes from his shirt pocket which was kept by him on the table. Appellant is then stated to have picked up the same and kept in his pocket and has further deposed that appellant has kept it on the table and thereafter complainant came out of the office of appellant gave call to Officers upon which raiding team officials arrived.
13. In view of evidence as aforesaid, it is martial to note that, according to complainant after he submitted application to appellant during visit of appellant to his village, he deposed to ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 11 have met appellant on 2 - 4 occasions enquirying if the mutation entry was made when appellant is stated to have demanded money. Evidence of complainant on this aspect is silent as to how much was the amount demanded or when same was agreed to be accepted.
Further, evidence of complainant of his visiting to the office of appellant on 4th November, 2003 when he claims to have demanded Rs.1000/- by appellant which was negotiated to Rs.500/-, does not appear to be truthful at all, as above stated evidence of complainant creates reasonable doubt from his report, Exh.13 on record, as from the contents of report it is specifically mentioned that on 4th November, 2003 one Shri Uike, Kotwal of village Govindpur has served notice upon him which was issued by appellant, however, since he was busy in agricultural work during that period he could not meet the appellant. In view of contents of report as aforesaid, the evidence of complainant of his visiting office of appellant and of contacting him at Govindpur on 4 th November, 2003 on which date appellant is said to have made demand of Rs.1000/- which was negotiated to Res.500/- does not ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 12 appear to be truthful at all.
14. Similarly, though in report, Exh.13 complainant has further stated that on 12th November, 2003 he visited office of appellant and after meeting him he enquired from complainant if he has brought Rs.500/- to which he replied in negative when appellant is stated to have informed him to arrange for said amount by following day, i.e. 13 th November, 2003 by noon hours, and to visit his office by which time he would take the mutation entry, when his evidence if considered, is totally silent about visit to the office of appellant on 12th November, 2003. In view of absence of evidence of complainant about visit to office of appellant on 12th November, 2003, there is nothing to establish on record as to what prompted complainant to visit office of Anti Corruption Bureau on 13th November, 2003 and to lodge report. If this visit of complainant on 13th November, 2003, as deposed by him, is to be relied upon, then this visit of complainant to the office of Anti Corruption Bureau is with reference to alleged demand made by appellant on 4th November, 2003. However, if ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 13 this case of prosecution is to be considered, this is not reliable at all as from the contents of report, Exh.13 as aforesaid, on 4 th November, 2003 it is his own case that being busy in agricultural work, he did not visit office of appellant during that period.
In the light of above evidence, prosecution therefore has failed to establish a demand of bribe by appellant. On the contrary, visit of complainant on 13th November, 2003 in the office of Anti-Corruption Bureau thus, appears to be only with a view to falsely implicate him on the basis of false report.
15. On considering further evidence of complainant on the point of incident of demand and acceptance of amount on the day of incident, he has deposed that after his visiting to the office of appellant, he was equired by appellant if he has brought the money. In fact, his evidence ravels that there is no demand made but what is deposed is about enquiry made by appellant if he has brought the money, upon which complainant replied in affirmative when appellant demanded the same and on accepting kept on the table. When above evidence of complainant is compared with ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 14 evidence of PW 2 Ravindra, the first panch, to establish if his evidence corroborates complainant's evidence, it is noted that as per evidence of panch after appellant received the bribe amount he counted the notes and kept it on the table and kept on it a Calculator. In fact, from the evidence of complainant, it has come on record that after his reaching to the office of appellant it is he who said the appellant to take money and do the work. As such, as already mentioned above, no demand can be said to be made by appellant even on the day of incident.
16. With regard to the case of appellant of his issuing notice on 4th November, 2003 which, according to complainant, is admittedly served upon him and inability of appellant to effect mutation entry before lapse of 15 days when evidence of complainant is further perused he has admitted that appellant has told him that after receipt of notice if nobody responds and no objection is recorded, in that event his case will be sent to Revenue Inspector. Complainant further admitted that after appellant's informing him as aforesaid he thought that appellant is ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 15 deliberately avoiding his work. On being confronted with notice dated 4th November, 2003 he admits it to be the same and also admits that it was issued to Chhayabai, the vendor from whom, as per his evidence, he has purchased agricultural land of which mutation was to be done by the complainant.
17. From his further cross-examination, it has come on record that when he met appellant, it was also informed to complainant that for want of note-book of mutation entries, no such entries can be made till the office of appellant receives such register from the department. In view of admission as aforesaid, coupled with the case of complainant of his visiting to office of appellant repeatedly for the purpose of getting the mutation entry made, there is every possibility of his falsely involving appellant by lodging report on 13th November, 2003, though after his meeting in the office of appellant on 4th November, 2003 there was no meeting between him and appellant and as such, there was no reason for complainant to visit office of Anti-Corruption Bureau on 13th November, 2003.
::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 16
In the cross-examination, PW 1 complainant is suggested that Revenue Inspector Mr.Dhote informed him to keep amount of Rs.500/- as deposit with the appellant, which suggestion is denied by him and has further denied that accordingly he had kept tainted amount on the table of appellant at the instance of Revenue Inspector and thus appellant told him to not to keep any such amount with him and by returning it to complainant told him to give money to the person who had told him as above. Though complainant has denied case as aforesaid, from the evidence of PW 4 Jabbar Khan, Investigating Officer, it has come on record that after apprehension of appellant he reacted saying that, he was deceived by the complainant and that he never demanded money and he should be saved. It, therefore, appears that immediately after his apprehending by the officers of the Anti-Corruption Bureau, appellant had made disclosure of his false apprehension and involvement by complainant. This case appears to be materially substantiated when in his statement recorded under Section 313 of the Code of Criminal Procedure, in reply to question no.14 appellant replied that on 4 th November, ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 17 2003 after taking necessary entry in the 7/12 extracts of complainant, he issued notice to him and as per procedure, it was required to wait for fifteen days to effect mutation entry, however, on 13th November, 2004 itself, complainant visited his office, and forcibly thrusted currency notes in his hand saying that the Revenue Inspector told him to approach him and accordingly he told the complainant that he should go to the concerned Revenue Inspector and at that time quarrel took place between them. In view of specific case of complainant as aforesaid, same appears to be more probable than the case of prosecution as put forth.
18. In fact, above case of appellant is further found substantiated from the evidence of PW 3 Pradipkumar Dange, Sanctioning Authority, who in clear terms has admitted that appellant was asked to make mutation entry in the record in respect of agricultural land of complainant. He further submitted that as per procedure after receipt of application, appellant was required to make entry in the Ferfar Panji and thereafter notice is required to be given before making mutation entry in form No.9 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 18 calling objections and if within fifteen days no objection is received then entry can be taken and if any objection is received same is sent to Tahsildar concerned under the directions of Revenue Inspector. As per his evidence, it is Tahsildar who will decide the objection and thereafter again parties would be issued notice asking them to remain present as per form no.12 and after their approval, mutation entry is made. Admittedly, in the case in hand, appellant on 4th November, 2003 had issued notice, Exh.16 to complainant as well as to Chhayabai, vendor, and thus was not competent to effect mutation entry on 13 th November, 2003 or even prior to that and as such, case of prosecution of applicant demanding bribe on 4th November, 2003 thus, even does not appear to be truthful on this count since no demand can be said to be proved in the case in hand. In the circumstances as aforesaid, reference can usefully be made to the ratioi laid down by the Hon'ble Apex Court in the case of B.Jayaraj ..vs.. State of Andhra Pradesh reported in (2014)13 SCC 55 where it is noted thus -
"Mere possession and recovery of the currency notes from the accused without proof of demand ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 19 will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
19. Similarly, as from the above discussed evidence, no demand can be said to be established by prosecution, reference can usefully be made to the ratio laid down by the Hon'ble Apex Court in the case of C.Sukumaran ..vs.. State of Kerala, reported in (2015)13 SCC 59 where it is noted thus -
"The Special Judge found the appellant guilty under Section 7 and 13(1)(d) read with Section 13(2). The High Court on reappreciation of evidence held that the conviction of the appellant under Section 7 was not warranted as the essential element of demand of illegal ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 20 gratification by the appellant, from the complainant, was not proved. However, the High Court held that there as a strong evidence against the appellant under Section 13(1)(d) of the Act to show his culpability as he had voluntarily accepted the money as bribe from PW
2. His conviction under Section 13(1)(d) read with Section 13(2) of the Act was thus confirmed.
Allowing the appeal, the Supreme Court.
Held:
The High Court erroneously affirmed the conviction under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act."
20. Thus, the Supreme Court in this case has observed that High Court has rightly held that there was no demand of illegal gratification on the part of appellant under Section 7 of the Act therefore question of acceptance of illegal gratification from ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 21 complainant under the provisions of Section 13(1)(d) of the Act does not arise.
In the case in hand as no demand is proved, there is no question of appellant's accepting any illegal gratification in contravention to Section 13(1)(d) punishable under Section 13(2) of the Act.
21. In the light of above facts, the case set out by appellant in his statement under Section 313 of Code of Criminal Procedure, as aforesaid, therefore appears to be reasonable to be relied upon and since prosecution has failed to establish demand even if tainted amount of Rs.500/- is seized from the table of appellant, that by itself is not sufficient to establish involvement of the appellant in the present crime.
22. For the reasons stated above, prosecution cannot be said to have established the case against appellant beyond reasonable doubt. Criminal Appeal thus succeeds. In the result, following order is passed.
::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 22
(i) Criminal Appeal No.837 of 2008 is allowed.
(ii) Judgment and order dated 28th November, 2008 passed in Sessions case No.14 of 2004 by learned Special Judge, Chandrapur is quashed and set aside and appellant is acquitted of the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
(iii) Bail bonds of the appellant stands cancelled.
(iv) Fine amount, if any, paid by the appellant be refunded to him.
JUDGE.
Chute ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 ::: Apeal 837.08 23 ::: Uploaded on - 31/01/2017 ::: Downloaded on - 27/08/2017 12:59:07 :::