Bombay High Court
Madhukar Baliram Ukey vs Central Bureau Of Investigation Nagpur on 26 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
APEAL-510.05-Judgment 1/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 510 OF 2005
APPELLANT :- Madhukar Baliram Ukey, aged 59 years,
(Accused) Occupation-Service, Resident of 110 Nalanda
Nagar, Bhagwan Nagar, Nagpur.
...VERSUS...
RESPONDENT :- Central Bureau of Investigation Nagpur.
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Mr. S.P.Dharmadhikari, Sr. Counsel assisted with
Mr.U.A.Gosavi, counsel for the appellant.
Mrs.Mugdha Chandurkar, counsel for the respondent.
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CORAM : MANISH PITALE, J.
DATE OF RESERVING THE JUDGMENT: 13.07.2018.
DATE OF PRONOUNCING THE JUDGMENT: 26.07.2018.
J U D G M E N T
By this appeal, the appellant has challenged the judgment and order dated 08/09/2005 passed by the Special Court constituted under Prevention of Corruption Act, 1988, ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 2/19 Nagpur (Trial Court) in Special Case No.25 of 2003 (Old Special Case No.4 of 1996), whereby the appellant was convicted under sections 7, 13(i)(d) read with section 13(2) of the said Act and he was sentenced to suffer imprisonment for 3 years and 1 year on the said counts as also to pay fine amount as specified in the order.
2. The prosecution case in brief was that the appellant was working as Income Tax Inspector at Nagpur at the relevant time. Complainant Maruti Jawanjar (PW-1) was the Managing Director of Berrar Finance Company, Nagpur. He had applied for grant of loan to the Bank of Maharashtra, wherein he had to execute mortgage for his house as a collateral security and he was also required to submit a certificate under section 281 of the Income Tax Act, 1961. Accordingly, on 17/01/1996 the complainant PW-1 had submitted an application in the Income Tax Office for grant of such certificate. On 31/01/1996 the complainant PW-1 contacted Income Tax Officer Mr. R.R. Chandekar (PW-5) to enquire about the status of the said certificate, upon which the said Mr.Chandekar told him to contact the appellant.
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3. According to the prosecution, when the complainant PW-1 contacted the appellant, he demanded a bribe of Rs.1,000/- for issuing the said certificate under section 281 of the Income Tax Act, 1961. The appellant allegedly asked the complainant PW-1 to come to his office on 05/02/1996 with the said bribe amount. As the complainant PW-1 was not ready to pay the said amount of bribe, on 05/02/1996 he submitted a complaint (Exhibit-21) in the office of the Central Bureau of Investigation (CBI), Nagpur. On the basis of the said complaint, preparations were made to execute a trap against the appellant, for which 2 panchas were summoned and currency notes smeared with phenolphthalein powder were prepared as bribe money. The Investigating Officer (PW-6) Sunil Kelkar prepared the team for execution of the trap by explaining the procedure in detail. Thereafter at about 12.30 p.m. the entire team reached the office of the appellant and the complainant PW-1 along with shadow witness (panch No.1) Sureshchandra Sharma (PW-3) went to meet the appellant.
4. Upon the complainant PW-1 and shadow witness PW-3 meeting the appellant, he asked as to whether the complainant PW-1 had made arrangements for settling his ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 4/19 account and further as to whether no objection certificate from Life Insurance Corporation of India (LIC) was obtained. It is relevant that no objection certificate from LIC was required because the house of the complainant PW-1 was already mortgaged to the LIC and loan could not be granted by the Bank of Maharashtra until such no objection certificate was obtained from the LIC. At this point in time, the appellant asked the complainant PW-1 to come out and have tea. Accordingly, the complainant PW-1, shadow witness PW-3 and the appellant went to a hotel adjacent to the office for having tea.
5. According to the prosecution, while having tea in the hotel, the appellant again asked the complainant PW-1 about the said no objection certificate, upon which he said that such certificate would be provided when it was ready. At this point, the appellant asked for money, upon which the complainant PW-1 handed over the money to the appellant, who took it in his left hand and placed it in the left hand side pocket of his pant. This happened in the presence of shadow witness PW-3. The complainant PW-1 gave pre-decided signal to the Investigating Officer PW-6 and the entire team apprehended the appellant. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 5/19 Thereafter, the procedure of pouring sodium carbonate solution on the hands of the appellant, as also the pocket of his pant, was completed and post trap panchnama was prepared. On the basis of the execution of trap and the material that had come on record, the appellant was charged with having committed offence under the aforesaid provisions of the Act.
6. In support of its case, the prosecution examined 7 witnesses. PW-1 was the complainant himself, PW-2 was the Sanctioning Authority, PW-3 was the shadow witness, PW-4 was the panch witness i.e. Panch No.2 for the trap, PW-5 was the Income Tax Officer Rajendra Chandekar, PW-6 was the Investigating Officer and PW-7 was the Police Officer, who carried the material for forensic analysis.
7. On the basis of the oral and documentary evidence brought on record by the prosecution, by the impugned judgment and order, the Trial Court found that the prosecution had proved its case beyond reasonable doubt against the appellant and thereby it convicted and sentenced the appellant. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 6/19
8. Mr. S.P.Dharmadhikari, learned senior counsel appeared along with Mr. U.A. Gosavi, Advocate for the appellant. It was contended by the learned senior counsel that a perusal of the application Exhibit-20 dated 17/01/1996 submitted by the complainant PW-1 to the Income Tax Officer PW-5 for issuance of certificate under section 281 of the Income Tax Act, 1961, demonstrated that the complainant PW-1 did not divulge that he had already mortgaged his house to the LIC. According to him, this was a relevant aspect in the present case. It was also pointed that an endorsement was made on the said application Exhibit-20 by the Income Tax Officer PW-5 stating that the appellant was to verify and put up report. According to the learned senior counsel, the appellant had made it clear on 31/01/1996 to the complainant PW-1 that a no objection certificate from the LIC was required as the house was already mortgaged with the LIC. Since the complainant PW-1 was not in a position to arrange for such a no objection certificate, it had become evident to him that due to insistence of such requirement by the appellant, certificate under section 281 of the Income Tax Act, 1961 could not be issued to him. As a result, the complainant PW-1 developed a grouse ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 7/19 against the appellant and he concocted the story of demand of bribe of Rs.1,000/- on 31/01/1996 by the appellant.
9. It was contended that the delay in submitting written complaint to the CBI on 05/02/1996 by the complainant PW-1 also demonstrated that the grievance sought to be raised by the complainant PW-1 was not real. It was submitted that if the appellant had indeed made demand of illegal gratification of Rs.1,000/- on 31/01/1996, the complainant PW-1 could have made complaint of the same to the Income Tax Officer PW-5 or other superiors of the appellant. Instead, the complainant PW-1 waited and submitted the written complaint on 05/02/1996, on the basis of which, a trap was prepared by the CBI.
10. On the manner in which the trap was executed, the learned senior counsel submitted that there was lack of credible evidence of the complainant PW-1 and shadow witness PW-3 to show that there was demand of illegal gratification by the appellant. It was submitted that the evidence of the witnesses read with the chemical analysis (CA) report Exhibit-45 indicated that the complainant PW-1 had thrust the amount into the pant pocket ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 8/19 of the appellant. On this basis, it was submitted that there was lack of evidence to prove demand as well as acceptance of illegal gratification by the appellant. It was further contended that the claim of the complainant PW-1 that illegal gratification was demanded by the appellant for issuance of income tax certificate, was not believable because, being Managing Director of a company, the complainant PW-1 was certainly aware that it was beyond the power of the appellant to issue such a certificate. It was also contended that sanction granted by the Sanctioning Authority PW-2 was unsustainable as the material on record demonstrated total non-application of mind by the said Authority. The learned senior counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, reported in (2015) 10 SCC 152, Nanjappa v. State of Karnataka, reported in (2015) 14 SCC 186 and the judgments of this court in the case of The State of Maharashtra v. Ramrao Marotrao Khawale, reported in 2017 ALL MR (Cri) 3269, Vinod s/o. Savalaram Kanadkhedkar v. The State of Maharashtra, reported in 2016 ALL MR (Cri) 3697 and The State of Maharashtra v. Maroti Putaji Tagadpalle, reported in ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 9/19 2015 ALL MR (Cri) 4292. On this basis, it was contended that the impugned judgment and order passed by the Trial Court was unsustainable.
11. Per contra, Mrs. Mugdha Chandurkar, the learned counsel appearing on behalf of the respondent, submitted that there was sufficient evidence on record to prove both demand and acceptance of illegal gratification by the appellant in the present case and that conviction and sentence imposed by the Trial Court was justified. It was submitted that the appellant had sought illegal gratification for processing the application of the complainant PW-1 for issuance of certificate under section 281 of the Income Tax Act, 1961 and that therefore, the contention raised on behalf of the appellant that issuance of such certificate was not within the powers of the appellant, was without any substance. It was submitted that the theory of thrusting of bribe amount was unacceptable because the evidence of the complainant PW-1 and shadow witness PW-3 read with the CA report conclusively proved that the appellant had indeed accepted the amount towards illegal gratification from the complainant PW-1. It was submitted that if the appellant had never sought ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 10/19 illegal gratification and he had only informed the complainant PW-1 to get no objection certificate from the LIC, the appellant had no business to ask the complainant PW-1 to come out of the office to have tea and to state that his account be settled by the complainant PW-1. Use of such words while asking the complainant PW-1 to come out to have tea, demonstrated that the appellant always had demand of illegal gratification in his mind and that such illegal gratification was not only demanded but, it was actually accepted by him while having tea in the hotel from the complainant PW-1 in the presence of shadow witness PW-3. On this basis, it was contended that there was no substance in the submission made on behalf of the appellant. The learned counsel for the respondent relies upon the evidence of the Sanctioning Authority PW-2 and the sanction order dated 06/05/1996 (Exhibit-25) to contend that no fault could be found with the sanction order and that the contention raised on behalf of the appellant in this context was also unsustainable. On this basis, it was submitted that the appeal deserved to be dismissed.
12. Heard the learned counsel for the parties and perused the record. In the present case, a perusal of the written complaint ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 11/19 dated 05/02/1996 (Exhibit-21) submitted by the complainant PW-1 to the office of the CBI shows that a demand of bribe of Rs.1,000/- was allegedly made by the appellant on 31/01/1996 for issuance of certificate under section 281 of the Income Tax Act, 1961 and that the appellant asked the complainant PW-1 to come with the said amount on 05/02/1996. There is no mention in this written complaint that the appellant was asking for no objection certificate issued by LIC from the complainant PW-1 for issuance of certificate under section 281 of the Income Tax Act, 1961. This fact is mentioned in the evidence of the complainant PW-1 as also that of shadow witness PW-3. On this basis, it has been vehemently contended on behalf of the appellant that since the appellant was insisting on no objection certificate from LIC, which the complainant PW-1 was unable to produce, a false case of demand of illegal gratification was created by the complainant PW-1. It was submitted that when it was specifically stated in the said complaint dated 05/02/1996 (Exhibit-21) that the appellant had demanded bribe of Rs.1,000/- for issuance of certificate under section 281 of the Income Tax Act, 1961, without mentioning that the appellant had also asked for no objection certificate from LIC, it was evident that a false case was created. In this context, the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 12/19 learned counsel for the respondent has submitted that the bribe amount was demanded by the appellant for processing the application submitted by the complainant PW-1 for issuance of certificate under section 281 of the Income Tax Act, 1961, which was further fortified by the document at Exhibit-20 i.e. the application dated 17/01/1996 submitted by the complainant PW-1, wherein an endorsement had been made by the Income Tax Officer PW-5 to the appellant asking him to verify and put up report. Thus, the processing of the application submitted by the complainant PW-1 was in the hands of the appellant and he had a crucial role to play in such application being processed, leading to issuance of certificate in favour of the complainant PW-1.
13. In such a situation, the contention raised on behalf of the appellant that since he was insisting on no objection certificate from LIC, due to which issuance of certificate under section 281 of the Income Tax Act, 1961 was held up, the complainant PW-1 had lodged a false complaint, does not appear to be sustainable. This is further fortified from the manner in which the appellant acted when the trap was executed against him on 05/02/1996. If the appellant had been clear that in the absence of no objection ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 13/19 certificate from LIC, the application of the complainant PW-1 could not be processed, he could have simply told the complainant PW-1 on 05/02/1996 to bring such no objection certificate from LIC or to leave his office. But, strangely, after making such a query about the no objection certificate from LIC, the appellant asked the complainant PW-1, in the presence of shadow witness PW-3 to come out with him to have a cup of tea and to settle his account. The appellant had no business to act in this manner and to take out the complainant PW-1 for a cup of tea outside his office. Not only did the appellant take the complainant PW-1 out for tea in an adjacent hotel, but while having tea, he specifically stated that the complainant PW-1 should give money for the work. This demand was made in the presence of shadow witness PW-3 and the evidence of the said witness along with that of the complainant PW-1 has remained steadfast even in cross- examination.
14. Therefore, evidence pertaining to demand of illegal gratification was elaborately brought on record by the prosecution and it was proved to the hilt by the evidence of the complainant PW-1 and that of shadow witness PW-3. As regards acceptance of ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 14/19 the amount, it was deposed by the said 2 witnesses that the appellant accepted the amount in his left hand and placed it in the left pocket of his pant. In this connection the theory of the defence was that the amount was thrust by the complainant PW-1 in the pocket of the appellant. Arguments were made on behalf of the appellant in this regard on the basis of the CA report at Exhibit-45. It was contended that while post trap panchnama recorded that left hand fingers of the appellant had changed colour upon sodium carbonate being poured, such solution pertaining to fingers of both hands in the CA report showed change of colour and presence of sodium carbonate as well as phenolphthalein powder. It was submitted that presence of phenolphthalein powder and sodium carbonate on fingers of right hand of the appellant was fatal to the prosecution case and it indicated that the appellant had indeed resisted thrusting of bribe amount in his pocket. It was further contended that while solution collected after being poured on the left side pant pocket of the appellant showed presence of phenolphthalein powder and sodium carbonate, the pant did not show presence of the same. It was contended that absence of traces of phenolphthalein powder and sodium carbonate on the pant was also fatal for the prosecution case. ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 :::
APEAL-510.05-Judgment 15/19
15. But, an analysis of the CA report at Exhibit-45 would demonstrate that the solution collected after washing left side pant pocket of the appellant did demonstrate presence of phenolphthalein powder and sodium carbonate, which was in consonance with what was recorded in the post trap panchnama. The absence of phenolphthalein powder and sodium carbonate on the pant would not be fatal for the prosecution because the whole case of the prosecution was that the bribe amount was kept by the appellant in the pocket of his pant. The CA report at Exhibit-45 stated that hand wash liquid of fingers of both hands of the appellant changed colour and showed presence of phenolphthalein and sodium carbonate. Merely because post trap panchnama recorded change of colour of only left hand fingers would not be fatal for the prosecution case because acceptance of tainted bribe amount by appellant stood sufficiently proved.
16. Once the demand as well as acceptance of the illegal gratification by the appellant stood proved on the basis of the evidence of the complainant PW-1 and shadow witness PW-3, read with CA report at Exhibit-45, it could not be said that the offences under the provisions of the said Act were not made out ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 16/19 against the appellant. The reliance placed by the learned senior counsel on the judgment of the Hon'ble Supreme Court in the case of P. Satyanarayan (supra) is misplaced because the aforesaid judgment of the Hon'ble Supreme Court lays down that proof of demand of illegal gratification is the gravamen of the offences under the provisions of the said Act and proof of mere acceptance would not be enough. In the present case, since it is found that there was cogent evidence brought on record by the prosecution to prove both demand and acceptance of illegal gratification, the said judgment of the Hon'ble Supreme Court would not help the appellant in any manner. As regards the judgments of this court pertaining to delay in submission of written complaint to the CBI and the appellant not having the power of issuance of certificate under section 281 of the Income Tax Act, 1961, it is evident from the facts of the present case that the prosecution case could not fail, only because the appellant submitted written complaint to the CBI on 05/02/1996. As per the case of the complainant PW-1, the appellant demanded illegal gratification on 31/01/1996 and asked the complainant PW-1 to come with the said amount on 05/02/1996. In this situation, no fault could be found with the prosecution case, merely because the complainant PW-1 did not ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 17/19 approach the CBI before 05/02/1996. As regards the appellant not having power to issue such certificate under section 281 of the Income Tax Act, 1961 and the reliance placed on behalf of the appellant on the judgment of this court in this context, it can be of no avail because the appellant surely had a major role to play in processing of the application for issuance of such certificate. In any case, as noted above, the appellant had no business to take the complainant PW-1 out of his office for tea and to specifically demand the amount towards illegal gratification in the presence of shadow witness PW-3.
17. As regards validity of sanction order issued by the Sanctioning Authority PW-2, a perusal of the sanction order dated 06/05/1996 at Exhibit-25 and the evidence of the Sanctioning Authority PW-2 shows that there is sufficient material to indicate application of mind by the Sanctioning Authority. The learned senior counsel for the appellant raised strong objection to the Sanctioning Authority merely correcting draft sanction order and according to him, this indicated absence of application of mind. The Sanctioning Authority PW-2 entered the witness box and stated that he had gone through the documents sent by the CBI ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 18/19 and that thereafter he had perused the draft sanction order and upon due application of mind, sanction was granted. Certain contradictions are sought to be projected in the evidence of the Sanctioning Authority PW-2 to contend that there was non- application of mind. But, minor contradictions in the evidence of the said witness would not be fatal for the prosecution because the sanction order was issued on 06/05/1996 while the evidence of the Sanctioning Authority PW-2 was recorded on 14/10/2004 i.e. after more than 8 years, by which time the said officer had already retired from service in September, 2002. The fact that the Sanctioning Authority went through the documents sent by the CBI and each and every word of the draft sanction order was read and then the sanction order dated 06/05/1996 Exhibit-25 was passed, goes to show that it could not be said that there was non-application of mind in the present case. In this context, judgment of the Hon'ble Supreme Court in the case of Nanjappa (supra) relied upon on behalf of the appellant would be of no avail.
18. In the light of the above, it becomes obvious that the impugned judgment and order passed by the Trial Court ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 ::: APEAL-510.05-Judgment 19/19 convicting and sentencing the appellant cannot be said to be erroneous. Accordingly, this appeal is dismissed and the impugned judgment and order passed by the Trial Court is confirmed. Since the appellant was enlarged on bail, with the dismissal of this appeal, he shall surrender within a period of four weeks from today to serve out the remaining part of the sentence.
JUDGE KHUNTE ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:45:26 :::