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2015 DIGILAW 281 (BOM)

Ulhas v. State of Maharashtra

2015-01-30

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Both these appeals are being disposed of by common judgment as they challenge the judgment and order dated 16/9/1998 passed in Special Case No. 10 of 1994. Appellant Ulhas in criminal appeal No. 343 of 1998 is accused No. 1 and appellant Ramesh in criminal appeal No. 353 of 1998 is accused No. 2. Both the appellants, for the sake of convenience, are hereinafter referred to as accused No. 1 and accused No. 2 respectively. Both the accused were tried for the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, "the Act"') by the Special Judge, Wardha. 2. The allegations against both the accused in nutshell were: The complainant Rajesh Bhandekar, a building material supplier from Wardha, had engaged his tractor bearing registration No. MH-32 A-1022 and the trolley bearing registration No. MH-32 B 1023 along with driver Shamsunder Ghodkhande for transportation of sand from the river bed of the river Yashoda at Deoli after obtaining royalty permit from licence holder Jaswantsing Oberai. When the driver of the tractor and trolley, after loading the trolley with sand, was about to start for Wardha he was accosted by accused No. 1, who was then working as Naib Tahsildar at Deoli on the charge that the driver was transporting sand from the bed of the river situated at a place not mentioned in the royalty permit. He, therefore, seized the tractor, trolley and the sand. Complainant Rakesh Bhandekar, on learning about the said seizure, met accused No. 1 on the same day at Deoli and requested him to release the tractor, trolley and the sand and not to file any case for the said offence. At that point of time accused No. 1 demanded Rs. 500/- as bribe amount from Rajesh and as Rajesh was not in position to pay the entire amount, he requested accused No. 1 to accept an amount of Rs. 250/- that he was carrying and release the tractor, trolley and sand. Accused No. 1 told him that he would release the tractor, trolley and sand on payment of Rs. 250/- but remaining amount Rs. 250/- would have to be paid to him on 05/10/1993 and it was only thereafter that he would drop the proceedings. Accordingly, the complainant paid an amount of Rs. Accused No. 1 told him that he would release the tractor, trolley and sand on payment of Rs. 250/- but remaining amount Rs. 250/- would have to be paid to him on 05/10/1993 and it was only thereafter that he would drop the proceedings. Accordingly, the complainant paid an amount of Rs. 250/- immediately to accused No. 1 and secured release of the tractor, trolley and sand. Thereafter, as the complainant was not willing to pay further amount as a bribe, filed a complaint with Anti Corruption Bureau, Wardha. It decided to entrap accused No. 1 and, therefore, panchas were called and necessary formalities required for preparation and completion of the trap were carried out. On 05/10/1993, however, the trap could not succeed as accused No. 1 told the complainant that he was busy on that day and asked him to meet him on the next day. On 06/10/1993 the complainant met accused No. 1 at Talathi office at about 4.30 p.m. He was then accompanied by panch No. 1, the shadow witness Mahendra Kumbhare. Accused No. 1, in presence of the shadow witness, asked the complainant to handover the amount of Rs. 250/- to one pan stall owner Ramesh Tayade, who is accused No. 2 in this case. Accused No. 2, as instructed by accused No. 1, accepted amount of Rs. 250/- and thereafter he as well as accused No. 1 were caught hold of by the members of the raiding party. Accused No. 2 was found to be in possession of the tainted currency notes, which were four in number and which consisted of currency note of Rs. 100/- denomination and three currency notes of Rs. 50/- denomination, totalling to Rs. 250/-. Another panchanama, which was pachnama No. 4 was prepared. Necessary seizures were carried out and after completion of investigation, charge-sheet was filed against both the accused persons. 3. On merits of the case, the trial Court found that the offence punishable under Section 7of the Act was proved beyond reasonable doubt against accused No. 1 and offence punishable under Section 12 read with Section 7 of the Act was found to be proved against accused No. 2 beyond reasonable doubt. Accordingly, by the judgment and order passed on 16/9/1998 the Special Judge, Wardha convicted and sentenced both the accused. Accused No. 1 was sentenced to suffer rigorous imprisonment for two years together with fine of Rs. Accordingly, by the judgment and order passed on 16/9/1998 the Special Judge, Wardha convicted and sentenced both the accused. Accused No. 1 was sentenced to suffer rigorous imprisonment for two years together with fine of Rs. 1,000/- and default sentence of six months. Accused No. 2 was sentenced to suffer rigorous imprisonment for six months and also to pay fine of Rs. 500/- with default sentence of three months. Not being satisfied with the same, both the accused are before this Court in the present appeals. 4. I have heard Shri Kukday, learned Counsel for accused No. 1, Shri Dharkar, learned Counsel for accused No. 2 and Shri Ikre, learned A.P.P. for the State. I have carefully perused the impugned judgment and order and record of the case. 5. It is the contention of learned Counsel for accused No. 1 that the evidence as brought on record against accused No. 1 is highly discrepant in nature and does not inspire confidence of the Court. He submits that in order to prove the offence of demand of bribe as illegal gratification punishable under Section 7 of the Act, it is necessary for the prosecution to establish that the amount has been demanded for doing some official work and in this case there has been absolutely no evidence showing that the amount of Rs. 250/- was demanded by accused No. 1 for doing any official work. He submits that there has been no substantive evidence brought in this regard by the prosecution and therefore, benefit of doubt deserves to be given to accused No. 1. He also submits that it is also not clear that as to exactly in what manner the amount has been allegedly accepted by accused No. 2 at the behest of accused No. 1 as panch No. 1 Mahendra Kumbhare (P.W.-1) states that the amount of Rs. 250/- was placed on the table before accused No. 1 and thereafter it was paid to accused No. 2 and that this transaction took place after taking of pan by accused No. 1 and the complainant. He submits that P.W.-4 Rajesh Bhandekar, the complainant, however, has stated that accused No. 1 directed the complainant to pay an amount of Rs. 250/- to accused No. 2 and he does not say anything about laying of the said amount on the table before him. He submits that P.W.-4 Rajesh Bhandekar, the complainant, however, has stated that accused No. 1 directed the complainant to pay an amount of Rs. 250/- to accused No. 2 and he does not say anything about laying of the said amount on the table before him. He further submits that the complainant also does not say as to when the said transaction took place whether it was after having coffee and before having pan or after having both, and thus, serious doubt about the credibility of the complainant has arisen in this case. He also submits that the complainant being building material supplier was supposed to know that once the tractor, trolley and sand were released by the Tahsildar, proceedings initiated as per the provisions of Section 48(7) of the Maharashtra Land Revenue Code automatically come to an end and, therefore, there was really no work pending with accused No. 1 of the complainant for which the complainant could have been asked to pay some amount. 6. Shri Dharkar, learned Counsel for accused No. 2 submits that basically it is for the prosecution to prove that a person who is accused of abetment of an offence has intentionally aided the other accused to commit the offence and it can be proved as in the instant case, only by bringing on record necessary evidence indicating that accused No. 2 did possess knowledge that the amount that he was directed to accept from the complainant was towards the bribe money being paid to accused No. 1. He submits that this basic ingredient of the offence of abetment having not been proved by the prosecution in this case, no criminal liability can be fastened upon accused No. 2. He also submits that on the other hand accused No. 2 has succeeded in bringing on record some important facts which probablise his defence. He submits that P.W.-1 Mahendra Kumbhare, panch No. 1, has admitted that before accepting money from the complainant, accused No. 1 had told him that the amount being paid by the complainant should be credited to his account. He further submits that it has been specific defence of accused No. 2 that he used to supply pan to accused No. 1 on credit and he used to maintain account of purchase of pan on credit by accused No. 1 from him from time to time. He further submits that it has been specific defence of accused No. 2 that he used to supply pan to accused No. 1 on credit and he used to maintain account of purchase of pan on credit by accused No. 1 from him from time to time. Further, he submits that accused No. 2 has been wrongly convicted and sentenced by the Special Court. 7. According to learned A.P.P. for the State, there is ample evidence against both the accused and there are no sufficient grounds shown by the accused to make any interference in the impugned judgment and order. He submits that the discrepancies pointed out by learned Counsel for accused No. 1 are very minor in nature and do not amount to any contradiction of the stand taken by the complainant as well as panch No. 1 in their respective testimonies before the Court. Therefore, according to him, those discrepancies deserve to be ignored. He also submits that even though P.W.-4 Rajesh Bhandekar has not specifically deposed about the pendency of work with accused No. 1 for which clearance he had paid an amount of Rs. 250/- as directed by accused No. 1, the fact remains that the prosecution has established demand of bribe amount by accused No. 1 and it's acceptance by accused No. 2 on behalf of accused No. 1 and, therefore, Section 20presumption gets attracted by virtue of which, it can be said that the prosecution has proved its case beyond reasonable doubt as regards demand of money as illegal gratification by accused No. 1. He submits that upon consideration of the entire evidence available on record, one can very well see that accused No. 1 has not rebutted Section 20presumption arising in this case and, therefore, it has to be said that the finding of guilt recorded by the trial Court as against accused No. 1 is legal, calling for no interference with it. He further submits that as regards accused No. 2 also, there being sufficient evidence establishing the fact that he had assisted accused No. 1 in taking the bribe amount from the complainant and whatever defence put forward by accused No. 2 being neither proved nor probalised by bringing on record material facts, there would be no scope for making any interference with the finding of guilt of accused No. 2 recorded by the trial Court as well. He urges that both the appeals deserve to be dismissed. 8. Upon consideration of the evidence available on record and what has been found by the trial Court in the impugned judgment and order, I am of the view that so far as the prosecution case as against accused No. 1 is concerned, there is great substance in the argument advanced by learned A.P.P. for the State, but, so far as the case of accused No. 2 is concerned, I find that the prosecution case as against accused No. 2 stands on very shaky grounds and, therefore, there is scope for making interference with the finding recorded by the trial Court as against accused No. 2 only. 9. The prosecution case has been mainly proved through the evidence of the complainant Rajesh Bhandekar (RW.-4) and panch No. 1 Mahendra Kumbhare (RW.-1). Therefore, it would be appropriate to bestow-all attention to their testimonies. 9.1 P.W.-4 Rajesh Bhandekar has clearly stated that when he reached the office of Talathi where accused No. 1 was present, he was asked by accused No. 1 as to whether or not he had brought the amount of Rs. 250/- and thereupon P.W. 1 replied as in the affirmative and produced that amount before accused No. 1. He has further stated that thereafter accused No. 1 asked him to pay the amount to the pan stall owner and then, accused No. 1 called accused No. 2 to the place where P.W.-1 Rajesh and accused No. 1 were having the said conversation and then directed accused No. 2 to accept the amount from the complainant. Accordingly, accused No. 2 accepted the amount. 9.2 It is true that in his cross-examination, P.W.-4 has given some admissions, which, at the first blush create doubt about his credit worthiness. But, when these admissions are considered in the light of other evidence on record, the doubt so created fades away. According to these admissions, an amount of Rs. 250/- was not given to accused No. 2 but was given to accused No. 1 by the complainant. These admissions are to the effect, "Accused Salame gave amount to accused Ramesh" and that accused Salame never paid the amount to accused Ramesh. These admissions, certainly run counter to what P.W.-4 Rajesh has stated in his examination-in-chief. P.W.-4 Rajesh maintains that when the amount of Rs. These admissions are to the effect, "Accused Salame gave amount to accused Ramesh" and that accused Salame never paid the amount to accused Ramesh. These admissions, certainly run counter to what P.W.-4 Rajesh has stated in his examination-in-chief. P.W.-4 Rajesh maintains that when the amount of Rs. 250/- was produced before accused No. 1, he was asked by accused No. 1 to pay that amount to the pan stall owner, who is accused No. 2 in the instant case and accordingly the amount was paid to accused No. 2. These two versions being contradictory to each other, only one of them can be true. Therefore, in order to ascertain which one of them is true one has to turn to other evidence available on record. In other words, we have to look for something which corroborates either of these two versions. 9.3 P.W.-1 Mahendra is panch No. 1. who was present during the entire conversation and transaction that took place in between the complainant and accused No. 1. If we carefully go through his evidence, we would find that P.W.-1 Mahendra supports the version of the complainant as it appears in his examination-in-chief and it does not at all support admissions given by P.W.-4 in his cross-examination to the effect that an amount of Rs. 250/- was not paid by him to Ramesh, accused No. 2 but to Ulhas, accused No. 1. Then, pachnama No. 4 (Exh. 33) which witnesses the entire process of ascertaining presence or absence of phenolphthalein powder on the hands of the persons involved in the transaction and also on the shirt pocket and full-pant pockets of the complainant and accused No. 2 respectively and also various seizures made at that point of time, also supports the version of the complainant as appearing in his examination-in-chief. This panchanama clearly discloses the fact that when the hands of accused No. 1 were washed with sodium carbonate solution, the solution did not change its colour. This is a scientific evidence and there is no reason for me nor any reason has been shown to me by learned Counsel for accused No. 1 to reject this evidence. It clearly shows that both the hands of accused No. 1 were not found to be having any traces of phenolphthalein powder. This is a scientific evidence and there is no reason for me nor any reason has been shown to me by learned Counsel for accused No. 1 to reject this evidence. It clearly shows that both the hands of accused No. 1 were not found to be having any traces of phenolphthalein powder. If this was the case, it has to be said what P.W.-4 Rajesh has stated in his examination-in-chief that amount was paid to Ramesh, accused No. 2 at the behest of accused No. 1 is correct and what is stated by him in his cross-examination is incorrect. After all, appearance of accused No. 2 in this crime was quite an unexpected event and it occurred, perhaps on the spur of moment coming from accused No. 1. Therefore, it is possible that those admissions might have been given by P.W.-4 Rajesh without really understanding the nature of questions put. It is also possible that by those answers he might have wanted to convey that though the notes were handed over to accused No. 2, the payment of bribe was made to accused No. 1. Therefore, these admissions cannot be said to be contradicting the version of the complainant as well as the stand taken by P.W.-1 Mahendra. 10. As regards the other discrepancies pointed out by learned Counsel for accused No. 1 which relate to placing of currency notes on table, handing over of currency notes before having pan etc., I would say that they are minor in nature and do not really go to discredit the prosecution witnesses on the core case that there was demand of bribe by accused No. 1 and it's payment to accused No. 1 by the complainant and, therefore, require no threadbare consideration. 11. Thus, from the evidence of both the afore stated witnesses and the circumstantial evidence in the nature of panchanama (Exh. 33), it can be seen that the prosecution has established beyond reasonable doubt the facts that there was demand of bribe money by accused No. 1 and there was acceptance of an amount of Rs. 250/- by accused No. 2 on the directions of accused No. 1. So far as accused No. 1 is concerned, the necessary ingredients of demand and acceptance of bribe money can be seen to be fulfilled from the said evidence. 250/- by accused No. 2 on the directions of accused No. 1. So far as accused No. 1 is concerned, the necessary ingredients of demand and acceptance of bribe money can be seen to be fulfilled from the said evidence. Of course, P.W.-4 Rajesh has not deposed very specifically about either pendency of the work or nature of the work that was pending with accused No. 1 for which the bribe money was demanded by accused No. 1. But, as the prosecution has succeeded in establishing the demand and acceptance of bribe money, as required by Section 20 of the Act, the presumption that the amount of Rs. 250/- was accepted as a bribe money or as a motive or reward for doing an official work would have been raised in this case and is drawn accordingly. This presumption is rebuttable, however, accused No. 1 has not rebutted it as can be seen from the manner in which the cross-examination of prosecution witnesses on behalf of accused No. 1 has been conducted. Not a single suggestion has been given either to the complainant or panch No. 1 or the Investigating Officer that no work was pending with accused No. 1 at the relevant time or that after the tractor, trolley and sand were released to the custody of the complainant on 05/10/1993, in view of the provisions of Section 48(7) of the Maharashtra Land Revenue Code, the proceedings came to be automatically closed. Even no suggestion has been given to any of the witnesses that the complainant Rajesh being a veteran in the field of transportation of sand. know everything about the violation of relevant provisions of Maharashtra Land Revenue Code and also about the stage when such a proceeding can be said to be terminated. In order to probablise the defence of the accused, it is necessary that some foundation in the evidence of the prosecution is laid. That foundation is not seen anywhere in the prosecution evidence. Even in the statement recorded under Section 313, Cr.P.C., accused No. 1 has not said anything about closure of the proceedings or knowledge of the complainant about termination or closure of proceedings upon release of the tractor, trolley and sand to him. That foundation is not seen anywhere in the prosecution evidence. Even in the statement recorded under Section 313, Cr.P.C., accused No. 1 has not said anything about closure of the proceedings or knowledge of the complainant about termination or closure of proceedings upon release of the tractor, trolley and sand to him. Thus, I find that the presumption arising from Section 20 of the Act has not been rebutted by accused No. 1 and, therefore, I find that the trial Court has correctly found accused No. 1 as guilty of the offence punishable under Section 7 of the Act, which relates to accepting of bribe amount as illegal gratification, as motive or reward, for doing an official work. Therefore, so far as accused No. 1 is concerned, I do not see that there are any sufficient grounds for making interference with the finding of guilt recorded by the trial Court. 12. As regards accused No. 2, it can be seen from the evidence available on record, the position is quite different. Accused No. 2 has been roped in this case with the aid of Section12 of the Act. Section 12 of the Act seeks to punish for abetment of offences punishable under Section 7 or 11 of the Act. What amounts to abetment of offence has not been independently defined in the Prevention of Corruption Act and therefore, for understanding what is meant by abetment in this Act, one has to take recourse to the provision of Section107 of the Indian Penal Code. Under this Section, abetment of a thing can be done in three different ways; firstly, it can be by instigation, secondly, it can be by engaging oneself in a criminal conspiracy and thirdly by intentionally aiding a person in doing an act which is an offence. In the instant case, we are not concerned with the first two ways through which abetment is possible as it is not the prosecution case that accused No. 2 had instigated or impelled or compelled or goaded accused No. 1 in any manner in taking bribe nor is it the case that there was criminal conspiracy between accused No. 1 and 2 or some other person for obtaining of the valuable thing or money from the complainant. It is the case of the prosecution that the complainant was directed by accused No. 1 to pay the amount of Rs. It is the case of the prosecution that the complainant was directed by accused No. 1 to pay the amount of Rs. 250/- to accused No. 2 and thereafter, even the accused No. 2 was told by him to accept that amount. So, this case would be falling in the third category of the abetment as defined under Section 107 of the Indian Penal Code. 13. Now, if we take a look at the prosecution evidence, we would find that nowhere it has appeared either in the evidence of the complainant P.W.-4 Rajesh or evidence of P.W.-1 Mahendra that accused No. 2 was told by accused No. 1 that the amount that he was directed to accept from the complainant was towards the bribe demanded by accused No. 1. There is also no other evidence brought on record by the prosecution from which an inference of sharing of same intention by accused No. 2 as accused No. 1 or same knowledge by accused No. 2 as accused No. 1 as regards the amount of Rs. 250/-, being the bribe amount can be drawn. When a person is charged with an offence of abetting commission of offence by means of intentionally aiding the main accused, the burden is upon the prosecution to prove that same intention was nurtured by the abettor as the main culprit himself. That evidence is absolutely lacking in this case. It is quite possible that a person who is accused of abetment of commission of offence may accept something for and on behalf of the main accused innocently and in good faith without doubting that the money that he is accepting is really a bribe. In other words, the intention of the abettor may be different from the intention of the main culprit. Therefore, it is necessary for the prosecution to establish that the abettor too had shared the same intention as the main accused. That is not the case here and, therefore, I am of the view, accused No. 2 deserves to be acquitted. 14. Apart from the lack of evidence of sharing of the same intention of accused No. 1, there is also evidence brought on record by accused No. 2 in support of his defence that the amount of Rs. That is not the case here and, therefore, I am of the view, accused No. 2 deserves to be acquitted. 14. Apart from the lack of evidence of sharing of the same intention of accused No. 1, there is also evidence brought on record by accused No. 2 in support of his defence that the amount of Rs. 250/- accepted by him was towards liquidation of the debit balance standing in the account of accused No. 1, which was opened by accused No. 1 with accused No. 2, a pan stall owner towards purchase of pan on credit by accused No. 1 from accused No. 2. P.W.-1 Mahendra has given a clearcut admission in this regard. He states that accused No. 1 was directed by accused No. 1 to accept the amount from the complainant and credit the same to his account maintained with him. It has also appeared through the evidence of P.W.-2 Ashok Kshirsagar, Clerk working in the office of accused No. 1, from whom receipt book had been seized by police, that accused No. 2 was in the habit of supplying pan to various persons working in tahsil office. Of course, he has pleaded ignorance about supplying of pan on credit to accused No. 1. But the fact remains that accused No. 2 was following the practice of supplying of pan to various employees of tahsil office, where accused No. 1 was working as Naib Tahsildar, on credit and was also in the habit of maintaining accounts of the employees to whom he used to supply pan on credit. Therefore, it can be said that accused No. 2 has succeeded in establishing on record through the principle of preponderance of probabilities that the amount that was accepted by him from the complainant was believed by him bona-fide to be the payment by accused No. 1 through the complainant towards liquidation of debit balance outstanding against him. Therefore, I find that accused No. 2 has successfully probablised his defence in this case and the prosecution has not shown that the probability so reasonably brought on record by accused No. 2 has been ruled out by any other evidence available on record. Therefore, I find that accused No. 2 has successfully probablised his defence in this case and the prosecution has not shown that the probability so reasonably brought on record by accused No. 2 has been ruled out by any other evidence available on record. Thus, I find that the prosecution has failed to establish beyond reasonable doubt it's charge that accused No. 2 abetted the commission of offence of acceptance of bribe by accused No. 1, which is punishable under Section 12 of the Act. 15. Learned Special Judge, as seen from the impugned judgment and order, has not considered the afore-stated material aspects of the case emerging from the evidence available on record and, therefore, I am of the view that the finding of guilt of accused No. 2 recorded by the trial Court for an offence punishable under Section 12 of the Act cannot be sustained in law. In the circumstances, Criminal Appeal No. 343 of 1998 deserves to be dismissed and Criminal Appeal No. 353 deserves to be allowed. I. Criminal Appeal No. 343 of 1998 stands dismissed. II. The trial Court shall take steps to execute the sentence against accused No. 1 Ulhas Upasrao Salame, in accordance with law. III. Criminal Appeal No. 353 of 1998 is allowed. IV. Accused No. 2 Ramesh Bhauraoji Tayade is hereby acquitted of the offence punishable under Section 12 read with Section 7 of the Prevention of Corruption Act, 1988. V. The amount of fine paid by him be refunded to him. VI. His bail bond stands discharged.