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2014 DIGILAW 2374 (BOM)

Laxman v. State of Maharashtra

2014-12-01

S.B.SHUKRE

body2014
JUDGMENT : S.B. Shukre, J. 1. This is an appeal preferred against the judgment and order dated 9.5.2003 passed in the Special Criminal Case No. 2/1993 by Special Judge and 4th Additional Sessions Judge, Nagpur. 2. Briefly stated, facts of the case are as under: The complainant in this case is one Laxman Varluji Chokhandre, he had purchased one piece of plot from Nagpur Improvement Trust (in short, "N.I.T.") and initial formalities like issuance of letter of allotment and letter of possession were also completed in due course after purchase of the plot. However, only one last step in respect of transfer of title to the complainant by N.I.T. had remained and it was of execution of a registered lease-deed. The file of the plot in question was being handled by the appellant and, therefore, complainant used to meet the appellant frequently in connection with execution of the registered lease-deed. It was here that some dispute arose between the complainant and the appellant. According to the complainant, the appellant initially demanded from him an amount of Rs.2,000/- for completing the file relating to execution of the registered document and forwarding it to the Court Agent for final stage, which amount was later on settled at Rs.1,000/-. The complainant submitted that as he had no other option left, he agreed to pay bribe amount Rs. 1,000/- to the appellant. At the same time, somewhere conscious of the complainant pricked and, therefore, he decided to lodge a complaint against the appellant with Anti-Corruption Bureau Nagpur. Accordingly, a complaint was lodged by him on 6.5.1992 and after completion of all the formalities in respect of entrapping the appellant, the complainant along with panchas and members of the raiding party proceeded to the office of appellant i.e. the Office of the Nagpur Improvement Trust, Nagpur. The complainant approached the appellant and after giving him an amount of Rs.1,000/- as demanded by the appellant in the presence of panch No. 1, complainant gave a signal to the members of the raiding party and appellant was caught red handed. Tainted currency notes were recovered from his shirt pocket and panchanama was drawn out and further investigation was carried out. After completion of the investigation, a charge sheet came to be filed against the appellant. 3. Tainted currency notes were recovered from his shirt pocket and panchanama was drawn out and further investigation was carried out. After completion of the investigation, a charge sheet came to be filed against the appellant. 3. The appellant was charged with offences punishable under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 (in short, "the Act") and had claimed to be tried. The case was decided on merits. The learned Special Judge found both the charges were proved beyond reasonable doubt and accordingly the learned Judge convicted the appellant of the offences with which he was charged. For the offence punishable under Section 7, the sentence awarded was of six months together with fine of Rs.500/- and for the offence punishable under Section 13(2) of the Act, the awarded sentence was of one year with a fine of Rs.500/-. Both the sentences were also accompanied with default sentences. The judgment and order were delivered on 9th May, 2003. 4. Bing not satisfied with the same, the appellant is before this Court in this appeal. 5. I have heard Mr. R.P. Joshi along with Mr. M.P. Kariya, learned counsel for the appellant and Mrs. Mayuri Deshmukh, learned A.P.P. for the respondent/State. 6. I have carefully gone through the impugned judgment and order and also the record of the case. 7. The basic submission of the learned counsel for the appellant is that the prosecution has failed to prove two material ingredients of the offence of demand of bribe as motive or reward for doing some official work and as an illegal gratification and accepting of the bribe amount for the said purpose. 8. In support of his argument he has taken me through the prosecution evidence. He also submits that presumption under Section 20 of the Act would not be attracted in this case as the foundational fact necessary for invoking provision of Section 20 of the Act have not been established on record by the prosecution. For this submission, he is placing reliance upon the case of State of Punjab vs. Madan Mohan Lal Verma, reported in 2013 (14) SCC 153 . 9. Learned A.P.P. submits that the foundational facts requisite for drawing of presumption against the appellant have been proved beyond reasonable doubt by the prosecution. For this submission, he is placing reliance upon the case of State of Punjab vs. Madan Mohan Lal Verma, reported in 2013 (14) SCC 153 . 9. Learned A.P.P. submits that the foundational facts requisite for drawing of presumption against the appellant have been proved beyond reasonable doubt by the prosecution. She submits that when a complaint was lodged by the complainant Laxman and also signal was given by him after payment of bribe amount, presumption arose that he accepted the amount as an illegal gratification for an official act. She further submits that this inference can be reasonably drawn from a fact established on record indicating that the bribe amount of Rs.1,000/- in the nature of tainted currency notes was seized form the possession of the appellant for which no reasonable or probable explanation has been given by him. Therefore, according to her, the appellant has failed to rebut the presumption under Section 20 of the Act and as such no interference with the impugned judgment and order would be necessary. 10. Upon perusal of the evidence available on record and also the impugned judgment and order, I find that there is great substance in the argument of learned counsel for the appellant and no merit in the argument of learned A.P.P. for the respondent/State. 11. It is true that in the examination in chief, PW 1-Laxman has stated quite in details about demand and acceptance of bribe amount by the appellant. However, the stand so taken by him in his examination in chief has been reversed by him in his cross-examination taken on behalf of the appellant. Perusal of the cross examination would show that he has virtually wiped out his story made out in examination in chief. He admits that the amount of Rs.1,000/- was given by him to the appellant as necessary charges for registration of the document of lease-deed. Perusal of the cross examination would show that he has virtually wiped out his story made out in examination in chief. He admits that the amount of Rs.1,000/- was given by him to the appellant as necessary charges for registration of the document of lease-deed. He has also admitted that even though he was told by the accused that an amount of Rs.1,000/- to Rs.2,000/- would be required for registering the necessary document, he entertained a doubt about bona fides of the appellant and, therefore, he lodged a complaint against the appellant with the A.C.B. He further admits that when he had approached the appellant, appellant had asked him to pay amount of Rs.1,000/- by putting it in an envelope and as he did not have an envelope ready with him, he put currency notes representing amount of Rs.1,000/- in the pocket of the shirt worn by the appellant at the relevant time. These admissions have appeared in the cross-examination of the complainant taken on behalf of the appellant. However, the prosecution did not choose to re-examine this witness with the permission of the Court. It would then mean that either the version in examination in chief of this witness is true or the version as given by him in his cross examination is true and in order to ascertain which of the versions is true, we would have to turn to other evidence available on record. 12. Now, the other prosecution evidence which would be significant in this regard would be of first pancha or shadow pancha, who according to the prosecution case, was a witness to the transaction that took place on 6.5.1992 between the appellant and the complainant. But, unfortunately even first pancha i.e. PW 2 Amithab Phule does not support the case of the prosecution. In the examination in chief itself he states that he could not listen to the conversation between the appellant and the complainant because he was standing at some distance from them. He also states that complainant had given currency notes to the appellant by putting them in an envelope. That is, however, not the story of the complainant or even the prosecution, as no envelope has been seized from the custody of the appellant. He also states that complainant had given currency notes to the appellant by putting them in an envelope. That is, however, not the story of the complainant or even the prosecution, as no envelope has been seized from the custody of the appellant. It is obvious that panch No. 1 Amithab Phule (PW 2) does not corroborate the prosecution case either on demand or acceptance of bribe amount by the appellant from the complainant. Even though in examination in chief itself, it had become clear that PW 2-Amithab Phule was not supporting the prosecution case, still no permission of the Court was taken for declaring him as hostile to the prosecution. Even in the cross examination, this witness has given some admissions which entirely go against the prosecution case and create a whole lot of doubt about genuineness of the prosecution case. In the cross-examination he admits that all the documents including panchanamas were prepared in the Anti Corruption Bureau Office on the next day of the incident, which was not the prosecution case. Even thereafter, no efforts appear to have been taken on behalf of the prosecution for seeking to reexamine this witness. 13. The above discussion would indicate that what we have before us now is a doubtful prosecution case of the complainant about demand and acceptance of the bribe for which no corroboration is forthcoming from an important witness, PW 2 Amithab Phule, Panch No. 1, who was supposed to shadow the complainant and witness each and every transaction and hear the conversation that was to take place between the complainant and the appellant. 14. At this stage, it would be better to turn to the defence taken by the appellant. It is the case of the appellant that the amount of Rs.1,000/- was put into the pocket of his shirt by the complainant as payment of registration charges, which was to be spent by purchasing stamp papers of about Rs.900/- and paying registration charge of Rs.100/-. It was also the defence of the appellant that well before 6.5.1992, the day on which trap was laid, the appellant had already forwarded concerned file to the Court Agent and, therefore, there was no occasion for him to make any demand for payment of some bribe for forwarding of file to the Court Agent. 15. It was also the defence of the appellant that well before 6.5.1992, the day on which trap was laid, the appellant had already forwarded concerned file to the Court Agent and, therefore, there was no occasion for him to make any demand for payment of some bribe for forwarding of file to the Court Agent. 15. PW 7 Santoshkumar Verma-Investigating Officer has admitted that file was seized from the custody of the Court Agent, one Chikate on 6.5.1992. That means, file was already in the custody of Chikate and it must have been received by him before the trap was laid in this case. This file is at Article-6 a closure perusal of the file would disclose that there is an endorsement made therein by the appellant on 29.4.1992 to the effect that all formalities for completion of registry of the concerned document had been done and the matter was ready for execution of a registered document. This endorsement of 29.4.1992 together with seizure of the file on 6.5.1992 would cumulatively indicate that the appellant had already done his job before the day of trap thereby lending credence to his defence that there was no occasion for him to demand any bribe amount from the appellant. It also stand to reason that if a person is interested in receiving some bribe for forwarding a file which he has to work on, he would not complete the work and would not forward the file to another Section or Department. But, in this case, the file had already been worked on, insofar as duty of appellant No. 1 was concerned and had also been forwarded to another Department i.e. Department of Court Agent for taking of final step in the matter. Then, there is also an admission given by PW 8-Manohar Subhedar, who was incharge of legal Section of N.I.T. Nagpur, which injects high degree of probability into the defence of the appellant. PW 8 Manohar admits that in this case stamp papers of about Rs.900/- would have been required to be purchased towards the payment of stamp duty. Then, there is also an admission given by PW 8-Manohar Subhedar, who was incharge of legal Section of N.I.T. Nagpur, which injects high degree of probability into the defence of the appellant. PW 8 Manohar admits that in this case stamp papers of about Rs.900/- would have been required to be purchased towards the payment of stamp duty. This admission together with other facts relating to completion of his work by the appellant on 29.4.1992 itself and forwarding of the concerned file to the Court Agent before the day of trap would show that it is probable that the amount that was recovered from the possession of the appellant may have been actually the amount voluntarily paid by the complainant towards payment of stamp duty and registration charges and that he may have lodged a complaint against the appellant under some misconception of fact. 16. Thus, it can be seen that the foundational facts relating to demand and acceptance of bribe amount have not been established by the prosecution beyond reasonable doubt and, therefore, Section 20 presumption cannot be said to have arisen in this case. In the case of Madan Mohan Lal (supra), the Hon'ble Apex Court has held that before the accused is called upon to explain how the amount in question was found in possession, the foundational facts must be established by the prosecution and as these foundational facts have not been established by the prosecution, I am of the view that this is not a case, wherein Section 20presumption would arise. Even if it is presumed that it did arise because of recovery of tainted currency notes from the possession of the appellant, still, I find that the defence taken by the appellant is highly probable and, therefore, the presumption stands rebutted by the probable defence taken by the appellant. 17. There is one more fundamental defect in the prosecution case against the appellant. This defect relates to giving of proper, legal and valid sanction by the sanctioning authority for prosecution of the appellant under Section 19. 17. There is one more fundamental defect in the prosecution case against the appellant. This defect relates to giving of proper, legal and valid sanction by the sanctioning authority for prosecution of the appellant under Section 19. It is well settled law that the sanctioning authority must apply it's mind to the material facts of the case and must be satisfied that prima facie case is made out against the accused for prosecuting him under the provisions of the Act and if it is seen from the evidence of the sanctioning authority or from the document of sanction that there is no application of mind before sanction was given, the sanction could not be said to be legal and valid. 18. PW 5 Gurumurthy Bedge, then Chairman of the N.I.T. was the sanctioning authority. Although he has stated that he had perused the investigation papers before taking appropriate decision, there is one material admission given by him, which belies his such evidence. In his cross-examination taken on behalf of the appellant, he admits that the concerned file was with the accused at the time of raid. In fact, it is not the prosecution case at all that the file in question was with the appellant at the time of raid. The Investigating Officer has stated that it was seized from the custody of the Court Agent, one Chikate. This admission given by PW 5 Gurumurthy Bedge shows that he has not properly applied his mind to the material facts of the case and if he had really applied his mind, a question would have certainly arisen in his mind as to why and for what purpose, the appellant would demand bribe from the complainant when the concerned file was not with him at all. As PW 5 Gurumurthy Bedge has missed this pivotal fact of this case, the inevitable conclusion is that he has not applied his mind before according sanction. As such, I find that even the sanction given by him was not legal and valid and on this ground also, the prosecution case against the appellant must fail. 19. As PW 5 Gurumurthy Bedge has missed this pivotal fact of this case, the inevitable conclusion is that he has not applied his mind before according sanction. As such, I find that even the sanction given by him was not legal and valid and on this ground also, the prosecution case against the appellant must fail. 19. Thus, I find that the learned Special Judge has committed a serious illegality in not appreciating the material facts of this case as discussed earlier, which together give rise to an inference that the defence taken by the appellant is probable which reasonably rebuts the presumption arising under Section 20 of the Act. The appellant, therefore, deserves to be acquitted of the offences with which he has been charged herein. The impugned judgment and order accordingly needs to be quashed and set aside. 20. In the result, the appeal is allowed. 21. The impugned judgment and order are quashed and set aside. 22. The appellant is acquitted of the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 23. Fine amount deposited by the appellant, if any, be refunded to him. 24. His bail bonds stand discharged.