Bombay High Court
Ratanlal Radhakisan Taori vs State Of Mah.Thr.Acb,Nagpur on 15 May, 2019
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari
apeal 201.05
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.201 of 2005
Ratanlal son of Radhakisan Taori,
aged about 54 years,
occupatio - service,
resident of Wardhman Nagar,
Nagpur. ..... Appellant
Versus
The State of Maharashtra,
through Anti-Corruption
Bureau, Nagpur. ..... Respondent
*****
Mr. R. M. Patwardhan, Adv., for the Appellant.
Mr. A. Y. Ghurde, Addl. Public Prosecutor for respondent-State.
*****
CORAM : B.P.DHARMADHIKARI, J.
Date : 15th May, 2019
ORAL JUDGMENT :
01. Heard learned Adv. Shri R. M. Patwardhan for the appellant ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 2 and Shri J. Y. Ghurde, learned Addl. Public Prosecutor, for respondent- State.
02. The appellant has been convicted under Sections 7, 13 (1)
(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, vide judgment dated 14th March, 2005, by a Special Court designated under the said Act, in Special Case No. 2 of 1997. For offence under Section 7, he has to suffer Simple Imprisonment for one year and to pay a fine of Rs.1,000/-, or, in default, further Simple Imprisonment of three months. For offence under Section 13 (1) (d) read with Section 13 (2), he has to suffer Simple Imprisonment for two years and to pay a fine of Rs.2,000/-, or, in default, further Simple Imprisonment for four months. The sentences are to run concurrently.
03. This Court on 23rd March, 2005, while admitting the appeal, passed an order on Criminal Application No. 881 of 2005 and appellant has been continued on bail.
04. Shri R. M. Patwardhan has submitted that complainant was an ex-student who could not appear for Xth Standard Examination in 1994-95, and he approached the school after a gap of about two years with a request to permit him to appear in March, 1997 examination. ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 :::
apeal 201.05 3 The student had earlier offered an amount of Rs. 1,000/- to appellant as he had failed in IXth Standard, to show him a favour and to create a picture that he has passed IXth Standard, which the appellant had declined. When the student approached again, he was informed about necessary formalities to be completed and an amount of Rs. 1010/- was demanded from him. Out of it, amount of Rs.800/- was to be appropriated towards imparting him tuitions. The student approached the appellant on 23rd July, 1996, paid Rs. 200/- only and was told to bring the balance amount of Rs.800/-. The student brought that amount in the evening when a trap was laid and completed.
05. Learned Adv. Shri Patwardhan submits that when, after accepting Rs.800/-, the raiding party apprehended the appellant, he told that he has not done anything wrong and amount of Rs.800/- was towards tuition fees. His statement was also recorded thereafter by the Investigating Officer and this story is reproduced therein. However, that statement was never produced before trial Court.
06. Learned Counsel adds that appellant then pointed out the form with necessary documents submitted by the complainant in the morning, and there were two more similar forms of other students. Photo copies of those other forms were also obtained by the ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 4 Investigating Officer. But, no investigation in relation to those forms and those two students has been conducted.
07. According to him, the demand of Rs. 800/- towards tuition fees for imparting tuition privately to a student who will be appearing for examination after a gap of about three years cannot be seen as a demand of bribe and neither Section 7 nor Section 13 (1) (d) is attracted. He states that though the student has, in his complaint to the State [Anti-corruption Bureau], given a break-up of amount legally due and payable by him on 23rd July, 1996, he has not given such a break-up in relation to demand of Rs. 1010/-. On the contrary, he never states that he asked for details of this amount of Rs.1010/- and a break-up was given or then there was refusal to give a break-up by the appellant-accused. He also submits that the student has before trial Court on oath pointed out that as he had Rs.200/- only, he paid that amount. However, it is not his case that appellant-accused demanded the balance amount from him then and Rs.200/- were refused. He submits that entire material on record, therefore, shows fabrication of a false story by the complainant to implicate the appellant therein.
08. Learned Additional Public Prosecutor points out that in the ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 5 light of arguments advanced, technical aspects of raid or demand and acceptance need not be gone into. Burden, therefore, shifts to appellant to demonstrate that he had asked for Rs.800/- towards tuition fees. He has not produced any evidence in support thereof. The alleged past history to show malafides or then the disclosure first made to Investigating Officer immediately at the time of raid is all by way of afterthought and does not inspire confidence. If tuition fees were charged, the appellant could have examined other two students in defence and brought that fact on record. He points out that complainant-student and the Investigating Officer were only given suggestions in relation to past history or then charging of tuition fees and they have denied it.
09. Without prejudice to these arguments, learned Additional Public Prosecutor submits that the Headmaster is legally prohibited from taking private tuition classes and hence the excuse of appropriating Rs.800/- towards tuition charges is also unsustainable. He adds that Section 13 (1) (d) also envisages cases in which a public servant like the appellant abuses his position and hence forcing a tuition upon an unwilling student needs to be seen as an act punishable thereunder.
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apeal 201.05 6
10. He states that taking defence only in suggestions given to complainant or Investigating Officer or then during Section 313, Criminal Procedure Code, examination cannot be seen as discharging the burden which appellant-accused has invited in present matter.
11. In reply-arguments, Adv. Shri Patwardhan has relied upon a judgment of this Court in case of Avinash Sitaram Garware Vs. State of Maharashtra [ 2008 ALL MR (Cri) 15 ]. He submits that a statement made first by appellant to Investigating Officer is important and if defence raised by appellant during trial is not at variance with it, the burden accepted by appellant must be deemed to be duly discharged. He points out that Investigating Officer could have produced that statement during trial and its concealment, therefore, must be seen as an adverse factor.
12. The Investigating Officer has been examined as PW 7. Investigating Officer, Purushottam, has in paragraph 13 of his cross- examination [in English] denied suggestion put to him. The recording in English is as under :-
"13. .......................................................................... .............It is not true that after entered office of accused he told me that he had not committed anything. He had received amount of tuition fees. ....." ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 :::
apeal 201.05 7
13. The question cropped up because of full stop which separates these two sentences. The recording in Marathi was, therefore, verified and there, the said paragraph 13 has been recorded as "Paragraph 12". Punctuation mark, full stop, appearing between two sentences reproduced supra is missing therein. There the punctuation mark employed is "comma". Thus, Investigating Officer has in Marathi deposed that accused did not inform him that he has not done anything wrong, or that he has received amount towards tuition fees.
14. However, in the very same paragraph, he has accepted that he, after completing formalities, recorded the statement of accused and that statement is not produced along with the charge-sheet. Investigating Officer in paragraph 5 of his Examination-in-Chief has also stated that accused pointed out to him the almirah in which examination forms were placed and there he could find total three examination forms, one was of complainant.
15. The complainant-student has been examined as PW 2. He deposes that he was told by Headmaster that amount of Rs. 1010/- was required as examination fees for Secondary School Certificate ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 8 [SSC] Examination. He then in paragraph 2 points out that on 22nd July, 1996 when he went to Shreyas Vidyalaya, as accused was not present, Clerk did not accept his form. He, therefore, went on next day, i.e., 23rd July, 1996. Accused then enquired whether he had brought fees of Rs. 1010/-. He then deposes before trial Court that he had only an amount of Rs.200/- and he paid that amount to accused. He, therefore, told the trial Court that he did not have amount in excess of Rs. 200/- at that time. His deposition shows that accused told him to bring the remaining amount till 4.00 p.m.; else his examination form would be torn and destroyed. As he was not willing to pay that amount, he came to the Office of Anti-corruption Bureau. Then he gives the break-up of amount which is due and payable as per the Board rules for submission of such examination form, late charges and penalty. According to him, total amount on all these counts due and payable by him and which the appellant would have demanded was Rs.160/- only.
16. In his cross-examination, he accepts that he failed in 1993- 94 in IXth standard and at that time, he had gone to accused. He has denied the suggestion that amount of Rs.1,000/- was offered by him to accused with a request to show him as "passed in IXth Standard." He denied that then accused refused to accept amount of Rs.1,000/-. He ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 9 also denied that accused then told him that students like him should not be in his school.
17. His cross-examination a little later says that enquiry about shortfall of Rs.800/- made by accused was disclosed by him to Anti- corruption Bureau; but it did not form part of his statement. He denied that amount was paid by him to accused towards tuition fees.
18. Learned Additional Public Prosecutor has placed reliance on the complaint lodged by PW 2, student, on 23rd July, 1996 with Anti- corruption Bureau. The complaint shows demand of Rs. 1010/- by appellant. He does not give any break-up of this amount in complaint. He states that he then made enquiries and learnt about the amount payable as per Board rules. He then states that appellant demanded amount of Rs.1010/- for submitting his form to Board. He went to Board Office on 22nd July, 1996, bought Form No. XVII after paying Rs.5/- and then got it filled from one Vijay Pawar. He then attached necessary documents and affidavit with it and went with Rs.200/- to submit the same to appellant. As appellant had already left on 22nd July, 1996, he went again on 23rd July, 1996.
19. In the next paragraph of his complaint, he points out what ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 10 happened on 23rd July, 1996. He hands over those documents with Rs.200/- to appellant and then appellant asked him to bring the remaining amount of Rs.800/-. He in his complaint states that he did not give any answer to appellant and appellant then told him that otherwise his form would be torn and would not be submitted to Board. He agreed to pay amount of Rs.800/- upto 4.00 O'clock in the school.
20. This complaint, therefore, shows that upto 23rd July, 1996, as per Board rules, amount due and payable by complainant was Rs.160/- and, therefore, he went again to appellant with amount of Rs.200/-. His complaint and deposition show that he had neither objected to or demanded any break-up of amount of Rs.1010/- from appellant-accused. On the contrary, in Examination-in-Chief, he deposes that the amount was demanded as "Examination Fees".
21. After agreeing to pay amount to appellant, complainant goes to Office of Anti-corruption Bureau and there he hands over Rs.800/-. So, a student, who did not have Rs.800/- when he visited the school, has handed over Rs.800 to Anti-corruption Bureau and it was used as a trap money.
22. It is this conduct which needs appreciation in present ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 11 matter. If amount of Rs.1010/- was demanded as examination fees, there was no reason for complainant to approach appellant with only Rs. 200/-. When he approached with amount of Rs. 200/- with a knowledge that only Rs.160/- was legally due and payable, there was no question of his agreeing to pay balance amount by evening. He only points out that he made enquiries and as an outcome of alleged enquiries, he went with amount of Rs. 200/- to Shreyas School. If this version of the complainant is correct, it means that he was determined to pay only Rs.160/- and was not ready and willing to pay Rs.800/-. He nowhere questions the propriety of appellant demanding Rs.800/- and does not lodge protest even orally. All this conduct and thereafter approaching the Anti-corruption Bureau and producing Rs.800/-, therefore, cast a doubt on bona fides of complainant only. He never protested and had no negotiations or bargain with appellant. Fact that he went with Rs. 200/- only shows that he was aware that, that much amount was required initially for submitting a form. This does not mean that he was not aware that balance amount demanded was towards tuition fees. If entire amount was towards examination fees, he was aware from day one that he has to pay Rs.1010/- to appellant and amount of Rs.200/- would not solve his problem.
23. This story needs an appreciation in the backdrop of the ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 12 previous history pointed out by the appellant. The appellant has brought on record the fact that that the student failed in IXth Standard. Fact that complainant-student thereafter approached the Headmaster is also accepted by him. He is denying offer of Rs.1,000/- to appellant- Headmaster to show him as "passed" in IXth Standard. This story also appears in his Section 313, Criminal Procedure Code, statement.
24. The fact that immediately after the raiding party apprehended the appellant, he claimed that he has not done anything wrong or that he has received amount towards tuition fees and disclosed the same to raiding party spontaneously then is in dispute. The suggestion given accordingly to Investigating Officer is denied by him. Use of different punctuation marks by learned Special Judge who personally dictates evidence in English and by the Sheristedar taking down evidence in Marathi is already looked into by this Court supra. The appellant's spontaneous reaction cannot be seen as something improbable. The Investigating Officer states that he recorded statement of appellant-accused thereafter on spot. That statement has not been made available to the trial Court.
25. In the judgment delivered by this Court in case of Avinash Sitaram Garware Vs. State of Maharashtra [supra], it appears that ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 13 accused Avinash had stated that he did not accept illegal gratification and that amount of Rs.500/- was accepted by him for investing in Small Savings. Avinash had not examined any witness in support of this defence. It appears that this position was examined in the light of provisions of Section 162 of Criminal Procedure Code and Section 25 of Evidence Act and then this Court has found that Section 162 comes into operation when the statement is intended to be communicated to a Police Officer who is investigating the offence. It appears that when Avinash made a statement, a Police Officer unconcerned with the case and investigation was standing by the accused, this Court found that such statement would not be hit by Section 162 of the Code.
26. In present facts, I need not dwell into this controversy. Question before this Court is if defence gives suggestions to complainant - PW 2 and Investigating Officer [PW 7] on the line of statement of accused already recorded on spot, the veracity thereof could have been examined by Investigating Officer immediately. Trial Court also in that situation would have been in the position to find out whether defence raised was by way of afterthought. Spontaneous reaction, if any, of appellant, therefore, has not been made available for judicial appreciation by the prosecution.
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apeal 201.05 14
27. If in that statement the fact of a previous dispute with complainant or then need of tuition fees finds a mention, the Investigating Officer ought to have conducted necessary investigation. He had two more examination forms in his possession and he could have recorded statement of those students to gather the correct position. Apparently, that has not been done.
28. Though learned Addl. Public Prosecutor has attempted to urge that law does not permit appellant, Headmaster, to indulge in the business of private tuitions or then forcing upon an unwilling student by abusing his position may constitute an offence, that was not charge during trial. Various questions emerge if this contention raised as an alternative argument is to be fully considered. In absence of charge in that respect, at this stage, such an effort cannot be countenanced.
29. I, therefore, find the appellant-accused entitled to benefit of doubt.
30. Accordingly, the Judgment and Order of conviction dated 14th March, 2005 delivered by Special Court, Nagpur, in Special Case No. 2 of 1997 is quashed and set aside. Appellant is given benefit of doubt and is acquitted of the charges as framed. His conviction ::: Uploaded on - 16/05/2019 ::: Downloaded on - 17/05/2019 01:11:27 ::: apeal 201.05 15 therefor is set aside.
31. Needless to mention that Bail Bond furnished by the appellant stands cancelled.
32. The Muddemal property be dealt with as directed by trial Court after appeal period is over.
Judge
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