Bombay High Court
State Of Maharashtra vs Rambhau Fakira Pannase And Another on 18 June, 1993
Equivalent citations: 1994(3)BOMCR668, 1994CRILJ475
JUDGMENT A.A. Desai, J.
1. This appeal by the State is directed against the finding of acquittal for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The facts leading to the prosecution are as thus :
Accused Nos. 1 and 2, respectively as Sub-Inspector and Constable, were attached to the Police Station, Wadi, of city of Nagpur. On 19-1-1989, one Mr. Hiwanje lodged a complaint of abuses and quarrel by P.W. 1 Sangamlal and his wife. Accused No. 1, therefore, called them to the Police Station. On 23-1-1989 at about 9.30 a.m. accused No. 1 demanded Rs. 1500/- from P.W. 1 Sangamlal for dropping the proceedings. With the intervention of the accused No. 2, the demand was settled at Rs. 1300/-. The complainant P.W. 1 Sangamlal at about 12-45 hours lodged a report in this behalf, vide Ex. 19 to the Anti-Corruption Bureau. Accordingly Panchanama was drawn vide Ex. 32. P.W. 3 Purushottam Manapure was introduced as a Panch. Thirteen tainted currency notes of one hundred denomination were entrusted to the complainant P.W. 1. The raiding party in the afternoon arranged a trap. However, it was unsuccessful.
Next day on 24-1-1989, at about 8.30 a.m. P.W. 1 Sangamal and panch P.W. 3 Manapure went to the accused No. 1 in Police Station, Wadi. Accused No. 1 directed P.W. 1 Sangamlal to go with the accused No. 2. Accused No. 2 took the complainant to P.W. 4 Suresh to exchange the notes. P.W. 4 Suresh was unable. As such they approached to P.W. 5 Arun Hadke and ultimately the tainted currency notes in possession of the complainant reached P.W. 6 Raman Wadekar. The raiding party headed by P.W. 9 Sub-Inspector Saraf reached the spot and seized the tainted currency notes from P.W. 6 Wadekar in the petrol pump. Ex. 40, the second panchanama, was accordingly drawn, The peculiarity of the case is that the seizure took place at the spot which was 2 kilo meters away from the Police Station, Wadi. PW 7 Tijare who is neighbour of P.W. 1 Sangamlal, was throughout in the company of P.W. 1 complainant Sangamlal. After the necessary investigation charge-sheet was filed. P.W. 2 Pathaniya, Commissioner of Police, vide Ex. 28 accorded sanction to the prosecution.
The defence of the accused No. 1 was of denial. According to him, on some occasion, he kicked P.W. 1 complainant. He was, therefore, annoyed and hence he made a false complaint. The defence of the accused No. 2 was also of denial. According to him, sometime he had challaned the vehicle of one relation of P.W. 7 Tijare and as such he is giving false version against him.
2. The learned Special Judge recorded impugned finding of acquittal on the ground that the sanction as accorded is bad in law. He discussed this aspect in para 29 of the impugned judgment. According to him, the Commissioner of Police was the appointing authority of the accused No. 1. However, it is not brought on record that he was also disciplinary or removing authority. As such P.W. 2 Pathaniya was not competent to accord the sanction. The reasoning as adopted for discarding the sanction is per se wrong. Even the defence counsel Shri Hardas and Shri Mardikar could not support this reasoning. The learned Special Judge lost sight that the appointing authority inherently possess the power of removal. As such P.W. 2 Pathaniya - Commissioner of Police - was competent to accord the sanction.
3. The learned Special Judge further held that the demand and acceptance by the accused No. 1 have not been proved. While supporting this reasoning Shri Hardas and Shri Mardikar urged that the learned Judge has taken a possible view having regard to the material on record. The finding of acquittal as such need no interference, in this appeal.
In para 9 the learned Judge has discussed the incident of demand on 22nd of January, 1989 and reacheda conclusion that the same has not been proved. The prosecution has not placed any reliance on the demand, in case if made, on 22nd January, 1989. The main thrust, is on the demand of 23rd January, 1989 in the morning at about 9.30 a.m.
4. The learned Judge made a reference in para 10 of the impugned judgment as regards the demand of 23rd January, 1989. However, he has not made any discussion. He has completely omitted this aspect and fell in gross error.
As regards the demand on 23-1-1989, P.W. 1 Sangamlal has deposed :
"At about 9.30 a.m. on next day I visited to Police Station along with my wife and daughter. Then I alone visited to Mr. Pannase in Police Station. He asked me whether you have brought the witness, I said that, they had already proceeded on duty. 'Mr. Pannase said that, if you want to file the case here, then you will have to spend something. I said, what is need to spend on it. Then he asked me to call Padmakar Constable. I then called Padmakar Constable. One constable shown me Mr. Padmakar constable. Then Mr. Pannase said that, if you want to settle the matter, then you will have to pay Rs. 1500/-. That time Mr. Pannase, myself and Mr. Tijare were present there. Then Mr. Pannase asked me to go away and act as per the directions of Mr. Padmakar constable."
In cross-examination in para 4 it was suggested that several times the complainant requested to patch up the matter. The complainant has accepted the suggestion. Another suggestions were that the complainant was not called in the Police Station on 23rd January 1989; the amount was not demanded on 23-1-1989; Pannase never made a demand for the money. Since pannase did not wish to patch up the matter, with a view to take revenge a false complaint came to be lodged. The witness has denied all the suggestions. The cross-examination on this aspect could not deter the witness.
5. This version of the complainant P.W. 1 Sangamlal is corroborated by the testimony of P.W. 7 Tijare, who was in the company of the complainant and his presence was not seriously challenged in the cross-examination and even while advancing arguments before us.
There is some discrepancy in the version of P.W. 7 Tijare. Time of the demand, he referred to at 8.30 p.m. The defence has tried to exploit this discrepancy during the course of cross-examination to bring out as a omission from the police statement. However, the timing as referred to was apparently a mistake. Instead of referring to 8.30 a.m. the witness has said 8.30 p.m. Undisputedly the complaint was lodged after the demand on the same day at 12-45 hours. Moreover the first trap which was unsuccessful, was made in the afternoon. Taking these undisputed aspects, the demand as referred to by P.W. 7 Tijare was certainly in the morning at 8.30 a.m. instead of 8.30 p.m. Except this discrepancy on which reliance is placed by the defence, the testimony of P.W. 7 Tijare renders complete corroboration to the version of P.W. 1 complainant Sangamlal. We, therefore, taking into account the version of P.W. 1 complainant Sangamlal, P.W. 7 Tijare read with Ex. 19, complaint, record our conclusion that the prosecution has fully established the demand by accused No. 1 on 23rd January, 1989.
6. Now as regards the demand and acceptance on 24-1-1989 at about 9.30 a.m., P.W. 1 Sangamlal has said :
"At about 9.30 a.m. Mr. Pannase came there on his Rajdoot Motor-cycle. Then Mr. Pannase entered into the police station. Mr. Padmakar was in the office at that time. Then I was called inside, and Padmakar also called us. Then I along with Mr. Manapure and Tijare entered into the cabin of accused Pannase. I wished Pannase, then he asked us to sit. Again he asked me, as to whether you have brought the witness. I said that, yesterday you have talked about money, why you are asking for witness today. Then accused Pannase called Mr. Padmakar, and directed Mr. Padmakar to go outside along with me and asked him to change the notes."
He further said (as per vernacular) that "Pande appears to be very intelligent and then along with Manapure, Tijare and Padmakar we came out."
The learned Judge discussed this aspect in para 14 of the impugned judgment and reached a conclusion that demand on 24-1-1989 is completely untrustworthy. The same is not corroborated by P.W. 3 Manapure and P.W. 7 Tijare.
Point raised by Mr. Hardas is that even otherwise the demand made on 24-1-1989, as per version of P.W. 1 Sangamlal, was not put to the accused persons in their examinations under Section 313 of the Code of Criminal Procedure. As such, according to the learned counsel, the circumstances cannot be used against the accused.
In view of this, we have conducted additional examination of both the accused persons in this Court. We have examined them to rectify the irregularity as cropped up and pointed out by the defence.
In the submission of the learned counsel for the defence, the complainant is virtually an accomplice and his version needs corroboration from independent witness. P.W. 3 Manapure has not supported in any manner the demand by accused No. 1 as put forth by the complainant. As such his uncorroborated testimony cannot be accepted and the charge must fail.
7. There cannot be any debate on a broad proposition. Judicial prudence ordinarily look a corroboration from an independent witness, to the version of the complainant. Undisputedly the Panch does not render corroboration to the version of the complainant on the aspect of demand on 24-1-1989. However, as discussed, the circumstances and the facts of the case are peculiar. In the instant case, the demand and acceptance did not take place then and there. After the demand, as claimed, the seizure took place at a distance of 2 kilometers from the Police Station from P.W. 6. Between demand and seizure, the peculiarity of the case is that there were intervening events. Moreover, the prosecution does not claim direct acceptance by the accused No. 1. We, therefore, propose to examine whether the circumstances which have been brought on record, render corroboration to the demand and acceptance.
We may mention at this stage that the accused No. 1 only in his statement under S. 313 of the Code of Criminal Procedure, tried to suggest that owning to his venture of kicking P.W. 1 Sangamlal, he lodged a false complaint. However, during the entire cross-examination no such allegation was made to P.W. 1 Sangamlal. The motive as tried to be attributed, is imaginary and by way of an afterthought.
8. The circumstances revealed from the deposition of P.W. 1 Sangamlal are as thus :
"Then Padmakar said that, we will go to wine shop, near Shere Punjab Hotel. I along with Padmakar proceeded there on Luna and Manapure and Tijare followed us. We stopped near Shrikrishna Wine Shop. Mr. Manapure and Mr. Tijare came there. Then Padmakar called a person, who was sitting in the wine shop, and other one person. The accused Padmakar asked me to hand over the amount to a person, who was wearing red shawl. I said that I do not know this man, and how I can give this amount to him. The accused annoyed and again asked me to hand over the amount to that man. Then I handed over the amount in the hands of Padmakar. Then that amount was handed over by accused Padmakar to a person, who was wearing red shawl and asked him to change the notes. He said that, as this being a morning time, he did not process this much amount. Then that amount was haned over to a person, who was wearing Jean pant and asked him to change the notes and then Padmakar asked me that your work is over and go."
Thereafter signal was given. A.C. officers with their team ultimately seized the currency notes from a person in the petrol pump (P.W. 6).
Accused No. 2 Padmakar while cross-examining P.W. 1 Sangamlal made a suggestion that he is making false statement which the witness has denied. This is the only cross-examination on the point.
It was reiterated by Mr. Mardikar appearing for the accused No. 2 that the claim of the witnesses cannot be accepted since the accused No. 2 was absent from duty on that day. As such he was not present there at all. The argument and plea is completely lame and defunct. Accused No. 2 under S. 313, Cr.P.C. in reply to question No. 19 says that he was standing in front of Shere Punjab Hotel and the complainant met him there. He further admitted in reply to question No. 20 that the complainant came to him for change of notes and he asked him to go to a wine shop. He says in reply that Pande said to him that he did not know any one and asked him to get the same. Accused No. 2 then said, he took the money from Pande and gave the same to Dongre. In view of the statement, the claim of the defence is completely baseless. The accused No. 2 was put vide question No. 23 that as per evidence of P.W. 4 Dongre, P.W. 5 Hadge and P.W. 6 Wadekar, accused No. 2 took the complainant first to wine shop of Dongre and demanded change and thereafter they went to Hadge and then they took the change from P.W. 6 Wadekar. In reply he has admitted the testimony.
9. During the course of arguments or even otherwise in the cross-examination it is not explained as to how the P.W. 1 complainant Sangamlal approached the accused No. 2 for getting the notes changed. No suggestion was made to P.W. 1 Sangamlal in cross-examination on behalf of accused No. 2. There was no even formal inquiry as to why and what for the complainant needed the change of the notes. It was also not suggested that the complainant in any manner was in need of the notes of smaller denominations. As such the entire claim as put forth by the accused No. 2 is completely infirm. It goes to suggest that he took the mission of getting the notes changed as decided earlier. His defence that he happened to be in Shere Punjab Hotel and incidentally the complainant came there, is patently false. Taking into account the evidence of P.W. 1 Sangamlal, P.W. 3 Manapure, P.W. 4 Dongre, P.W. 5 Hadke, P.W. 6 Wadekar and P.W. 7 Tijare it is fully established that it is the accused No. 2 who took the complainant for getting the notes exchanged. Even otherwise the defence has not seriously challenged the testimony of P.W. 4 Dongre, P.W. 5 Hadke and P.W. 6 Wadekar in this behalf.
10. Now we revert back to the incident as occurred in the cabin of accused No. 1. Pannase has, as per out additional examination which we have recorded, denied the incident. According to him, nobody came to him, particularly P.W. 1 Sangamlal in his cabin on that day. He said that he reached the Police Station at about 8-15 a.m. However, there was no discussion or talk with the prosecution witnesses as asserted by P.W. 1 Sangamlal.
However, according to P.W. 1 Sangamlal, on 24-1-1989 in the morning at about 9 a.m. Pannase said to him that Pande appears to be very intelligent. He also questioned him bringing about a witness and he then asked the accused No. 2 to get the notes exchanged. In cross-examination accused No. 1 though made general denial, has not challenged this specific version of the complainant. This aspect, according to us, is very reflective. Referring to intelligence of the complainant and questioning him about the witness, did suggest that at that time accused No. 1 Pannase might have sensed the possibility of a trap by the Anti-Corruption Bureau. He, therefore, thought it necessary, by way of abundant precaution, to get the notes brought by P.W. 1 Sangamlal changed. P.W. 1 Sangamlal, therefore, going with the accused No. 2 for changing the notes, was at the dictate of accused No. 1. It has established his nexus with the demand and it renders corroboration to the version of P.W. 1.
The subsequent events were the hectic effort made by accused No. 2 to get the notes changed. The argument advanced by Shri Mardikar was that the accused No. 2 merely rendered service to the complainant. This is totally unbelievable and needs to be rejected. The amount of efforts undertaken by the accused No. 2 in getting the notes changed definitely indicates that he was not on a charitable mission. The mission was with a definite design. The aspect which is disclosed by P.W. 1 Sangamlal is that when the accused No. 2 directed P.W. 1 to hand over the notes to P.W. 4 Dongre, the complainant hesitated. The accused No. 2 then got annoyed. This gesture of annoyance of accused No. 2 completely negatives the claim that he was on a charitable mission to help P.W. 1 Sangamlal. It definitely suggests that accused No. 2 was in league with the accused No. 1, and he was carrying the mission very scrupulously under the instructions of the accused No. 1. The accused No. 1 adopted a very skillful device in accepting the bribe amount by getting the same exchanged.
11. Crystally it is clear that the hectic efforts of accused No. 2 for getting the notes changed was a sequester to the transaction which occurred in the Police Station. He took the P.W. 1 Sangamlal to the wine shop and other places as per dictate of the accused No. 1. The device as adopted for accepting the bribe is novel and also ingenious. As such there could not be direct evidence of panch witness to render the corroboration to the testimony. However, the circumstances as appeared and which are fully established render not only corroboration but substantiate the claim of P.W. 1 Sangamlal that the accused No. 1 reiterated his demand on 24-1-1989 and accepted the same by the device of directing the accused No. 2 to get the notes changed. In pursuance of the acceptance, the notes after substitution would have reached to the accused No. 1 but for the intervention of the Anti-Corruption Bureau. We, therefore, hold that even in the absence of direct evidence of corroboration, the circumstances which we have discussed are more reflective and speak with entire certainty than the oral words of person in dock. They render full corroboration to the version of P.W. 1 Sangamlal that demand was made on 24-1-1989 and in pursuance thereof acceptance was deviced.
12. The learned Special Judge has not adverted to these aspects and reached an erroneous conclusion that the demand and acceptance on 24-1-1989 have not been proved. The learned Judge has not taken into account the peculiarity of the circumstances. The normal rule of corroboration has application in the normal circumstances of the case. Looking to the peculiarity of the case, the circumstances followed thereafter as discussed, would render complete corroboration. The prosecution has established that the accused No. 1, as a public servant, in discharge of his official duties, made a demand of Rs. 1300/- from P.W. 1 Sangamlal as an illegal gratification. Taking into account the evidence as we have reproduced and discussed, the accused No. 2 has played a very substantial role in negotiating on the figure of the bribe amount, also acting as a middle-man and further taking P.W. 1 Sangamlal for getting the notes changed at the dictates of the accused No. 1. The accused No. 2, therefore, substantially abetted the crime. Both the accused are, therefore, guilty of the offence for which they were charged. The finding of acquittal as impugned, therefore, cannot be sustained.
13. On the question of sentence we have heard Mr. Hardas for the accused No. 1 and Mr. Mardikar for the accused No. 2 and Shri Agrawal for the respondent State. According to Mr. Hardas, accused No. 1 is due for retirement sometime in 1997. Mr. Mardikar submits that the accused No. 2 has put 15 years of service and they are likely to lose their employments in view of the conviction. The submissions of the learned counsel is that lenient view be taken. Mr. Agrawal insisted for a maximum punishment. Since the accused are police personnel, having regard to the submissions, we pass the following order.
The appeal is allowed. The finding of acquittal recorded vide order dated 27-11-1991 is hereby set aside.
We hold both the accused guilty for the offences for which they were charged and convict them for the offence punishable under Ss. 13(1)(d), read with S. 13(2) of the Prevention of Corruption Act. We direct -
Accused No. 1 to suffer rigorous imprisonment for period of two years and to pay a fine of Rs. 5,000/- and in case of default, he shall suffer additional imprisonment for a period of one year.
Accused No. 2 to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 3,000/-. In case of default, he shall suffer additional imprisonment for a period of six months.
Bail bonds of the accused are cancelled.
On oral request of Shri Hardas and Shri Mardikar, the accused Nos. 1 and 2 are granted two months' time to surrender to their bonds.
14. Appeal allowed.