Bombay High Court
Pandit S/O Shankar Chaudhari vs The State Of Maharashtra on 1 March, 2012
Author: A.H.Joshi
Bench: A.H.Joshi
1 cra186.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 186 OF 1999
1. Pandit s/o Shankar Chaudhari,
age major, occ. Junior Clerk,
r/o Irrigation Project,
Jalgaon,
2 Subhash s/o Kitkul Shirke,
age major, occ. Junior Clerk,
Irrigation Sub-Division NO.5,
Padalase, tq. Yawal,
District Jalgaon ...Appellants
VERSUS
1 The State of Maharashtra,
through P.I.Anti Corruption
Bureau, Zilla Peth
police station
Jalgaon. ...Respondent
.....
Shri Joydeep Chatterjee, advocate for appellant no.1
Shri Vijay Sharma, advocate for appellant no.2
Shri R.P.Phatke, A.P.P. for respondent/State.
.....
CORAM : A.H.JOSHI, J.
DATED : 01.03.2012.
ORAL JUDGMENT :-
1. The accused were charged thus :-
Accused No.1 demanded on 6.9.1988 an amount of Rs.
400/- and settled to Rs.300/- by way of illegal ::: Downloaded on - 09/06/2013 18:14:33 :::
2 cra186.99 gratification and accepted it on 7.9.1988 towards discharge of official duty i.e. for forwarding favourable recommendation in respect of conversion of the post held by complainant Vishwas Tukaram Patil from Work Charged Establishment to Converted Regular Temporary Establishment (CRTE), and hence committed the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
Accused No.2 abetted commission of offence committed by accused no.1. Hence, punishable under Sections 7, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988.
2. Vishwas Patil was the daily rated worker employed on Work Charged Establishment in the Irrigation Department intermittently since 16.11.1986.
His case for conferment of status as held on CRTE was proposed by the Deputy Engineer concerned.
3. The tabulated information accompanying the proposal for conferring of status upon Vishwas Patil, originally indicated his date of entry in the employment to be 24.8.1979.
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4. The accused no.1 was working as a Clerk in the office of the Executive Engineer, Irrigation Department. It was a part of duty of the accused no.1 to scrutinize the proposals of conversion of posts for conversion into Regular Establishment, and place the proposal before the Executive Engineer for his consideration and decision.
5. According to the prosecution :-
(a) The accused no.1 has demanded Rs.400/-
for proposing Vishwas Patil s date of entry to be 2.8.1982 instead of 24.6.1979, though Vishwas Patil was in continuous employment only since 2.8.1982.
(b) The bribe amount was settled to Rs.
300/-.
(c) Accused no.2 gave a letter (a chit) of recommendation asking the accused no.1 to accept the amount and help the complainant.
(d) On a complaint of Shri Vishwas Patil, PW 9 of the Anti Corruption Bureau arranged and conducted the raid.
(e) On 7.9.1988 the accused no.1 accepted the amount in front of panch witnesses.
(f) Both the hands of the accused were caught hold of by PW 9 Mr. Gadekar.
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(g) PW 9 asked the accused to produce the bribe money, which he had kept in his pocket.
(h) The accused no.1 took out money kept in the pocket of his shirt by own hand and produced the currency notes worth Rs. 300/- before panch witnesses.
(i) Procedure of raid was successfully completed.
(j) After receiving sanction, the charge sheet was filed and charge indicated above has been framed.
6. The prosecution has examined following witnesses:-
PW 1 Sudhakar Pandurang Lampushe, Sanctioning Authority PW 2 Vishwas Tukaram Patil, Complainant PW 3 Bhaskar Raghunath Rade, Panch to pre-tap PW 4 Umakant Eknath Kumbhare, Panch to post-tap PW 5 Vijaysing Devising Patil, Carrier PW 6 Murlidhar Dhangar Patil, Panch PW 7 Uttam Gunaji Palave, Panch PW 8 Firoz Isar Shaikh, Hand Writing Expert PW 9 Digambar Sarjerao Gadhekar, Deputy Superintendent of Police, Investigating Officer ::: Downloaded on - 09/06/2013 18:14:33 ::: 5 cra186.99
7. Accused no.1 gave a written statement under Section 313 of the Criminal Procedure Code, and :-
(i) Denied the acceptance of bribe and claimed it to be a case of thrusting of money; and
(ii) Claimed that in the proposal pertaining to the complainant Vishwas Patil rectification of the date was also done and there was no occasion to do any favour to the complainant.
(iii) There were many infirmities in the process of proof of demand of bribe, acceptance by accused no.1 and recovery thereof from his person, apart that the charge is false and is not proved.
8. Accused no.2 gave written statement under Section 313 of the Criminal Procedure Code, and :-
(i) Denied the prosecution story;
(ii) Denied the letter allegedly given by him; and
(iii) Relied upon deficiencies in the prosecution evidence.
9. Accused no.1 has examined himself as witness in support of his defence.
::: Downloaded on - 09/06/2013 18:14:33 :::6 cra186.99 Accused no.2 did not bring any defence evidence and relied upon the weakness of prosecution.
10. The learned Special Judge held that :-
(a) The charge was proved as the demand of bribe, the raid, acceptance, and recovery of bribe money all were proved.
(b) The sanction was legal and was proved.
(c) The abetement by accused no.2 was also proved.
11. The learned Special Judge ordered the conviction of the accused no.1 for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act and against accused no.2 for the offence punishable under Section 12 of the Prevention of Corruption Act.
The accused were sentenced.
12. Heard both the sides.
13. Perused the record.
14. The points around which the case revolves, are summarized as follows :-
(a) Whether on the basis of evidence of the complainant Vishwas Patil PW 2 ::: Downloaded on - 09/06/2013 18:14:33 ::: 7 cra186.99 and evidence of Bhaskar Raghunath Rade PW 3 the panch witness, the fact as regards demand and acceptance of money by accused no.1 is proved?
(b) Has the prosecution proved that the demand and acceptance of bribe money, if proved, according to foregoing point no.(a), was it in the nature of gratification or reward in relation to duty by the accused discharge no.1?
of official
(c) Is the role of accused no.2 proved as abettor of offence committed by accused no.1?
D I S C U S S I O N
15. In relation to demand of money by accused no.1 and it s payment, the version of PW 2 Vishwas Patil is recorded in paragraph no.6 of his deposition Exh.30.
Relevant portion of the deposition of PW 6 reads as follows :-
6. ..........
I asked Shri Chaudhari as to what happened about my work. He asked me to come out. Shri Chaudhari also asked as to who was with me. I told him that he is my brother-in-law and resides at Nandra. Thereafter, I myself, Bhaskar Rade and ::: Downloaded on - 09/06/2013 18:14:33 ::: 8 cra186.99 accused Chaudhari came out side. We went in the canteen out side the office. I was sitting by the side of Shri P.S.Chaudhari and Bhaskar Rade was just adjacent to me.
I asked accused Chaudhari as to whether my work was done and he said yes. He asked me whether I had brought money and I told him in affirmative. I asked him whether I should pay the amount, on which Shri Chaudhari answered in the affirmative.
He also told me that it would have been sufficient if the amount would have been paid to Shri Shirke.
I accordingly took out the cash of Rs. 300/- from the right pocket of my pant and handed over it to accused Chaudhari.
Shri Chaudhari accepted the amount in his right hand and kept the amount in the left pocket of his shirt. Thereafter,took the tea and came out. Thereafter we stood out side the hotel.
[quoted from pages 73 and 74 of the paper book sub-paragraphing is done for convenience of reading]
16. In so far as version in regard to demand and acceptance is concerned, panch witness PW 3 Bhaskar Rade narrates the incident in paragraph no.4 of his deposition at Exh.33. The relevant version reads as ::: Downloaded on - 09/06/2013 18:14:33 ::: 9 cra186.99 follows :-
4. ......... ..........
Then Patil asked accused as to what happened with his work.
Accused Chaudhari asked Patil whether he has brought money as per agreement. Patil told that he has brought Rs.300/-. Accused Chaudhari told that, it would have been suffice had the amount been given to Shri Shirke ig also. He then asked for money.
Patil thereafter, took out the notes on which anthracene powder was applied and handed it over to accused Chaudhari.
Accused then kept the notes in the pocket of his shirt. Thereafter, we took tea and came out. Patil gave signal as per agreement.
........ .........
[quoted from page 85 of the paper book
sub-paragraphing is done for convenience of
reading]
17. In so far as the aspect of response and reaction of the accused when the raid is conducted version of panch witness PW 3 Exh.32 in this regard is seen in paragraph no.4, which reads as follows :-
4. ....... .........
Thereafter Shri Gadhekar and other staff ::: Downloaded on - 09/06/2013 18:14:33 ::: 10 cra186.99 of anti corruption bureau came there and Shri Gadhekar caught hold of accused.
Shri Gadhekar asked accused Chaudhari whether he accepted bribe. Initially Shri Chaudhari avoided saying no. Shri Gadhekar then took accused in confidence, then accused accepted that he took the amount. Thereafter accused chaudhari, myself, other panch, complainant and staff and Shri Gadhekar went to the of the office of Executive Engineer. The chamber Executive Engineer was opened.
Except the complainant Vishwas Patil, all others went inside the office.
[quoted from pages 85 and 86 of the paper book]
18. PW 9 Exh. 52 Mr. Gadekar asked the accused no.1 as to whether he had accepted the bribe money, the version of PW2 Vishwas Patil reads as follows :-
......... ........
Thereafter, Shri Gadhekar gave his
identification to accused
Chaudhari. He asked Shri
Chaudhari, whether he accepted Rs. 300/- from me. Chaudhari avoided to reply. Shri Gadhekar then took Shri Chaudhari in confidence and asked him, on which accused agreed that he accepted the amount.
::: Downloaded on - 09/06/2013 18:14:33 :::11 cra186.99 [quoted from page 74 of the paper book]
19. PW 2 states that he was asked to stay out side the room of the Executive Engineer. This witness, therefore, does not prove any aspect as regards recovery.
20. In so far as the aspect of recovery of the bribe amount from accused is concerned PW 2 states that he was asked to stay out side the room of the Executive Engineer. This witness, therefore, does not prove any aspect as regards recovery.
21. Version of PW 3 Bhaskar Rade Exh.32 as regards recovery of bribe money is as follows :-
5. Shri Gadhekar then asked the accused to take out the bribe money. On which, accused took out that money from his pocket. The panchas were shown the notes to verify whether the notes are the same.
We verified the numbers of the notes and got confirmed that it were the same. The notes were verified in ultra violet rays and it were shown bluish glow. The personal search of accused s pockets were taken. One key of the scooter, a cash of ::: Downloaded on - 09/06/2013 18:14:33 ::: 12 cra186.99 Rs.12/-, and one chit was found in accused s pocket. Those articles were verified in the ultra violet rays but nothing new was found. The articles except the chit were returned.
[quoted from page 86 of the paper book]
22. This aspect is then dealt with by the investigating officer which reads as follows :-
Digambar Gadekar PW 9 Exh.52,
2. ....... .......
I disclosed my identity to the accused. I asked him whether he has accepted the bribe from the complainant. The accused Chaudhari got frightened and tried to avoid to give reply. After taking into confidence the accused Chaudhari agreed to have accepted the bribe.
I then caught hold both his hands. We then went to inside the office of Executive Engineer. I got opened the chamber of Executive Engineer. I asked complainant Vishwas Patil to wait out side the office.
I then verified the hands of raiding party, panchas & myself in ultra violet rays. No bluish glow was found on the hands.
The tips of both the hands of accused Chaudhari and the pocket of his shirt ::: Downloaded on - 09/06/2013 18:14:33 ::: 13 cra186.99 shown bluish glow in the ultra violet rays.
The accused Chaudhari then handed over the amount of bribe to panch Shri Amarlal on my say. I told the panch Shri Rade toget verified the number of currency notes and the notes recovered by accused Chaudhari, in reference to first panchanama. On verification the panchas told that the currency notes were the same.
ig I verified the currency notes in ultra violet rays. It shown bluish glow of anthracene powder. I seized those notes and sealed in a packet. The currency notes shown to me are the same and the sealed packet bears my signature and that of panchas. I took personal search of accused Chaudhari.
[quoted from pages 158 & 159 sub-paragraphing is done for convenience of reading)
23. In response to the question as to whether accused no.1 has accepted the bribe money asked by Mr. Digambar Gadekar PW 9 Exh. 52, in his cross-examination, PW 3 has stated as follows :-
8. ........ .........
It is true that, immediately after Shri Gadhekar caught hold accused s hand and interrogated him about bribe money, the ::: Downloaded on - 09/06/2013 18:14:33 ::: 14 cra186.99 accused replied that he did not accept the money.
It is not true that accused Chaudhari also told that Vishwas Patil forcibly put the amount in his pocket. It did not happen that complainant Vishwas Patil told accused Chaudhari that he sustained loss as accused has changed the date of entry of his service, in the hotel. It is not true that I am falsely stating that Vishwas did not keep the notes in the pocket of accused Chaudhari forcibly.
[quoted from page 89 of paper book]
24. PW 9 has stated in cross-examination as regards the response of accused no.1 about his accepting the bribe money, as follows :-
6. ....... .........
I did not ask the panch to take out the notes of bribe from the accused, as he himself produced those notes from pocket, on my say. It is not true to say that the hands of the accused were not tested before taking out currency notes from his pocket.
[quoted from page 162 of paper book] ::: Downloaded on - 09/06/2013 18:14:33 ::: 15 cra186.99
25. In relation to the duty to be performed by the accused i.e. recommending the case of Vishwas Patil in order to benefit him, his version in the cross-
examination reads as follows :-
6. ........ ........
It is true that there is scoring as regards the date of entry in service in Exh.35 in respect of complainant Vishwas Patil. I did not inquire as to who made that scoring. The complainant did not tell me anything in this regard. I also did not interrogate him. I did not seize the cup and saucer with which accused consumed tea. It is not true that the fingers of accused shown bluish glow as I directed him to take out the notes from his pocket.
[quoted from page 162 of paper book]
26. Even if the version of PW 2 is accepted as proved, he does not in categorical terms state that the accused demanded money. He opens the dialogue between him and accused with following words :-
6. ....... ........
I asked accused Chaudhari as to whether my work was done and he said yes. He asked me whether I had brought money and I told him in affirmative. I asked him ::: Downloaded on - 09/06/2013 18:14:33 ::: 16 cra186.99 whether I should pay the amount, on which Shri Chaudhari answered in the affirmative. He also told me that it would have been sufficient if the amount would have been paid to Shri Shirke. I accordingly took out the cash of Rs.300/- from the right pocket of my pant and handed over it to accused Chaudhari.
Shri Chaudhari accepted the amount in his right hand and kept the amount in the left pocket of his shirt.
took the tea and came out.
Thereafter, Thereafter we stood out side the hotel.
[quoted from pages 73 and 74 of paper book]
27. While PW 3 states in relation to demand, which is already quoted, his version does not concur with the version of PW 2.
The panch witness states in categorical terms that, he (accused) then asked for money . Both the witnesses are concurrent on the point that PW 2 took out money from his pocket, the accused no.1 took money in his hand and kept it in the pocket of his shirt.
28. From above, though the demand is not stated by PW 2 in categorical terms, it is so stated by PW 3.
Though demand comes in doubt, acceptance of money by the accused is stated by PW 2 as well as PW3 in ::: Downloaded on - 09/06/2013 18:14:33 ::: 17 cra186.99 categorical terms.
29. At this stage, it would be appropriate to notice as to what is the plea of the accused no.1. The contents of the accused no.1 is summarized as follows :-
(i) He did not demand money.
(ii)
He did not accept the money.
(iii) The money was thrusted in his
pocket.
(iv) After PW 9 caught hold the
hands of accused no.1 before
recovery of bribe money from
the pocket of accused no.1,
the hands of accused were not
examined under the rays of
ultra violet lamp.
(v) Correction in the date of entry in
employment for continuous service, so as to be beneficial to the complainant Shri Vishwas Patil was not done, on the other hand, what was already on record was corrected which was unfavourable to the complainant.
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18 cra186.99
(vi) The accused no.1 has stepped
into witness box, who has in
categorical terms stated that
due to the correction in the
recommendation which was
prejudicial to the interest of the complainant, he has lodged the complaint and thrusted the bribe money in the pocket of the accused no.1.
(vii) He did not touch the bribe money.
(viii) The accused no.1 has touched the currency notes of bribe money only after PW 9 had asked the accused no.1 to take out the notes from his pocket.
(ix) It is pertinent to note that in relation to the demand and acceptance the evidence of the complainant PW 2 cannot be relied upon in absence of any corroboration, as his version stands at par with the version of an accomplice.
(x) Moreover, admittedly, the complainant PW 2 is not a witness as to the fact of recovery of money from the person of accused no.1.
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(xi) Second panch witness who could have proved/corroborated demand,payment and recovery is not examined by the prosecution.
(xii) The investigating officer is not the witness on demand, acceptance and recovery of bribe amount. Moreover being a person who has conducted the was interested in success of raid raid, he and ultimate conviction of the accused.
(xiii) Thus what emerges is thatPW 3 is the sole witness supporting the prosecution s story that the accused no.1 has demanded and accepted the bribe money and that it was recovered from him.
30. In the premises noted in the foregoing paras, this court has to decide as to whether the demand and acceptance of bribe are proved.
31. Considering that the complainant has inherent grudge against the accused and that his status is that of an accomplice, his evidence will have to be weighed with caution. Similarly evidence of PW 9 Mr. Gadekar, ::: Downloaded on - 09/06/2013 18:14:33 ::: 20 cra186.99 investigating officer has its own limitation.
The case therefore rests on the version of PW 3 panch witness only.
32. PW 9 Gadekar should have examined the hand or hands or tips of finger of the accused to see whether those are stained with anthracene powder, before the accused was told to take out the bribe money from his pocket.
Alternatively, hands of panch could have been examined, and therefore, panch should have been told to frisk the pocket of accused to recover the currency notes of bribe money.
33. The investigating officer PW 9 states that the examination of hands was done before money was produced.
34. In the present case, PW3 does not support the prosecution in it s version that the hands of the accused were checked under the special ultra violet lamp before he was asked to produce money from his pocket.
35. The investigating officer in his ::: Downloaded on - 09/06/2013 18:14:33 ::: 21 cra186.99 cross-examination admits that he did not tell panch witness to produce cash from the pocket of the accused, which is apparent from version of PW 3 contained in paragraph 6 at page 162 of the paper book, as quoted above.
36. Thus, the prosecution case rests on the statement of the prosecution witness as regards demand of bribe money i.e. only one panch witness PW 3.
37. The recovery of tainted currency notes of bribe money is proved from the accused.
The acceptance, however, comes under cloud of doubt. The hands and/or fingers of the accused were not tested under ultra violet rays before the accused was asked to deliver the amount of bribe. Such checking prior to recovery of bribe amount from the accused would not have been necessary, had amount been recovered by aid of any person other than the accused.
38. In this background it is necessary to advert to the defence evidence. DW 1 the accused no.1 has stated in his evidence as follows :-
...... ........
4. On 7.9.1988 Vishwas Patil and one person came to my office and met me. He ::: Downloaded on - 09/06/2013 18:14:33 ::: 22 cra186.99 requested me to come for tea and therefore, I, Vishwas Patil and that unknown person went to canteen. I interrogated Vishwas Patil as to who was with him.
At the same time Vishwas Patil opened the talk regarding date of entry of his service and gave order for tea. He insisted me to show the date of entry of service as 24.6.1979. I refused to do so as it was not as per rules.
we took tea. Thereafter we started going Thereafter out of the canteen. While we were coming out of the canteen Vishwas Patil put some currency notes in the pocket of my shirt, on the say, Rahu Dya meaning thereby keep it. This happened near entrance of hotel. I objected for the said and at the same time, anti corruption officer came there and caught hold my hands. My hands were caught hold by P.S.Gadekar and constable Bhosale.
Shri Gadhekar told me that I have accepted the bribe but I told him that the amount was forcibly kept in my pocket.
Shri Gadhekar took me to the office of Executive Engineer by holding my both hands. There, I was directed to produce currency notes. I handed over the notes to Shri Gadhekar with my right hand from the pocket of my shirt.
::: Downloaded on - 09/06/2013 18:14:33 :::23 cra186.99 Shri Gadhekar then verified my hands and carried out further process. I never demanded bribe from Vishwas Patil. I never accepted amount of Rs.300/- as bribe. I am falsely implicated by the complainant as he was very poor person and he got angry as he was to sustain a loss of Rs.30,000/- to Rs.32,000/-.
[quoted from pages 183 and 184 of paper book sub-paragraphing is done for convenient reading]
39. In the premises discussed herein above, the crucial aspects i.e. demand of bribe money, acceptance and recovery thereof are not proved by the prosecution beyond shadow of doubt.
40. Moreover, whatever is the strength of prosecution evidence is rendered further doubtful by the statement on oath by accused no.1, by which he has probablised his defence.
41. Exhibit 35/2 the extract showing list of employees and their date from which the employment is continuous is already on record. It indicates the date of entry of the complainant Vishwas Patil found therein to be corrected from 24.6.1979 to 2.8.1982 ::: Downloaded on - 09/06/2013 18:14:34 ::: 24 cra186.99 i.e. unfavourable to Vishwas Patil.
42 Admittedly, the sanctioning authority is Executive Engineer. It is not made clear beyond room of doubt as to how it was within the powers of accused no.1 to correct the date of entry to 24.6.1979 in order to render it favourable to the complainant. It is borne on record that all dates were to be cross checked from the service record which was already accompanying the proposal for conversion of the post of the complainant into Converted Regular Temporary Establishment (CRTE) from Work Charged Establishment.
43. In the premises discussed herein above, if conviction which is ordered by Special Court is confirmed, it would turn out to confirm the conviction basing the judgment on suspicion than proof of charge.
44. In the result, conviction and sentence of accused no.1 does not sustain. It is liable to be set aside.
45. As necessary corollary, the conviction and sentence of accused no.2 does not stand and same is liable to be set aside.
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46. In the result, appeal is allowed. The judgment and order of conviction and sentence of accused nos.
1 and 2 is hereby set aside. Both appellants are acquitted of respective charges. Bail bonds stand cancelled. Fine amount be refunded.
ig (A.H.JOSHI, J.)
dbm/crap186.99
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