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2017 DIGILAW 974 (BOM)

State of Maharashtra v. Ramrao Marotrao Khawale

2017-05-18

S.B.SHUKRE

body2017
JUDGMENT : S.B. Shukre, J. 1. This is an appeal preferred against the judgment and order dated 12th January, 2006, passed by the Special Judge Amravati, in Special (ACB) Case No.3/1992, thereby acquitting the respondent of the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 2. In the year 1991, the respondent was serving as a Talathi and was residing at Warud, Tq. Warud, District Amravati. He was also running his office from his residence. The complainant, Namdeo Mahadeorao Bopchi, a resident of village Rajara Bazar, Tq. Warud, District Amravati was interested in getting the land bearing Survey No.9/2, admeasuring 1½ acres mutated in his name and in the name of his brother, as the same was purchased by the complainant and his brother from their neighbour, Chhatrapati Wankhade. The land was purchased about 4 years prior to lodging of the complaint in the instant case. The complaint was lodged on 2nd May 1991. Around the same time as the purchase of the land, the complainant had approached the respondent along with one Vitthalrao Punjabrao Bahurupi with a request for taking a mutation entry in respect of the said land in revenue record in his own name and in the name of his brother. At that time, the respondent was alleged to have demanded amount of Rs. 150/- from the complainant for the said work. This demand of the respondent was fulfilled by the complainant. Later on, the complainant was told by the respondent that the mutation entry was carried out as desired by the complainant in the revenue record. 3. In the early part of April 1991, the complainant was again required to visit office of the respondent. This time, the complainant required a below poverty line certificate to be issued to him by the office of the respondent, as it was a prerequisite for obtaining subsidy for installation of Gobar Gas Plant at the premises of the complainant. On demand, the complainant paid amount of Rs. 40/- as the land revenue to the respondent. The complainant also incidentally enquired from the respondent about carrying out of mutation entry in the revenue record in respect of the land survey No.9/2 when the complainant was told by the respondent that the mutation entry was not taken in the revenue record and that some more documents were required. 40/- as the land revenue to the respondent. The complainant also incidentally enquired from the respondent about carrying out of mutation entry in the revenue record in respect of the land survey No.9/2 when the complainant was told by the respondent that the mutation entry was not taken in the revenue record and that some more documents were required. Again on 28.4.1991, the complainant along with one Arun Ghormade visited the office of the respondent and made him a request for taking mutation entry. The complainant had also brought with him the documents required for the purpose. The respondent, it is alleged, refused to accept those documents, also refused to take mutation entry and insisted upon the complainant paying him an amount of Rs. 250/- as bribe or illegal gratification for performing an official act. The complainant pleaded for mercy. The respondent, however, was reticent about his demand, but showed some leniency about the amount and agreed to accept amount of Rs. 150/- as illegal gratification for the said official work. The complainant was told to bring the said amount on 3.5.1991 at the residence of the respondent. 4. The complainant was displeased with the fleecing tactics adopted by the respondent. He went to the office of the Anti Corruption Bureau, Amravati about 3 days after the fresh demand of bribe was made by the respondent i.e. on 2.5.1991 and lodged a report against the respondent. The officials of the Anti Corruption Bureau, Amravati decided to entrap the respondent. Necessary formalities were completed and the trap was laid on 3.5.1991. It was successful and the tainted currency notes, which comprised one currency note of Rs. 100/- denomination and one currency note of Rs. 50/- denomination were recovered from the shirt pocket of the respondent. Necessary panchanamas were drawn out. Statements of witnesses were recorded. After completion of the investigation, a charge-sheet came to be filed against the respondent. 5. The respondent was tried for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. On merits of the case, the learned Special Judge found prosecution evidence as inconsistent, sketchy and unreliable and, therefore, giving benefit of doubt to the respondent, acquitted the respondent of the said offences by judgment and order passed on 12th January, 2006. Not being satisfied with the same, the State is before this Court in the present appeal. 6. On merits of the case, the learned Special Judge found prosecution evidence as inconsistent, sketchy and unreliable and, therefore, giving benefit of doubt to the respondent, acquitted the respondent of the said offences by judgment and order passed on 12th January, 2006. Not being satisfied with the same, the State is before this Court in the present appeal. 6. I have heard learned A.P.P. for the State. None is present for the respondent. I have carefully gone through the record of the case including the impugned judgment and order. 7. According to learned A.P.P., the evidence of prosecution witnesses is required to be considered as a whole and when it is done, one would find that this evidence inspires confidence and, therefore, the findings of facts recorded by the learned Special Judge in favour of the respondent would have to be termed as perverse or as not logically arising from the facts established on record. Thus, according to him, the impugned judgment and order deserve to be quashed and set aside. 8. At the outset, it must be stated that in an appeal against acquittal, like the present appeal, scope of interference is quite limited. When two views are reasonably possible on the basis of evidence on record, one favouring the accused and the other inclining towards the prosecution, the one which favours the accused has to be adopted and if this has been done by the trial Court, it would not be open for the Appellate Court to upset such a view, just because another view favouring the prosecution is possible and the appellate Court thinks that such a view ought to have been taken by the trial Court. A useful reference in this regard may be had to the case of Satvir Singh v. State of Delhi, through Central Bureau of Investigation, reported in (2014) 13 SCC 143 ; Murugesan s/o. Muthu and others v. State, through Inspector of Police, reported in (2012) 10 SCC 383 ; Chandrappa and others v. State of Karnataka, reported in (2007) 4 SCC 415 ; Abrar v. State of Uttar Pradesh, reported in (2011) 2 SCC 750 ; Rukia Begum and others v. State of Karnataka, reported in (2011) 4 SCC 779 , and State of Madhya Pradesh v. Dal Singh and others, reported in (2013) 14 SCC 159 . This is a case to which this principle of law squarely applies. This is a case to which this principle of law squarely applies. In the instant case, a careful perusal of the impugned judgment and order discloses that the trial Court has adopted a view based upon the evidence available on record, which favours the accused. This view, as stated earlier, having been based upon the evidence available on record and not being the result of consideration of any extraneous material or ignorance of the material evidence available on record, cannot be substituted by this Court, just because, in the opinion of the learned A.P.P. some other view is possible. 9. In a graft case, if voluntarily acceptance of bribe amount is important, so is the demand of bribe amount. It is well settled law that when a trap is set for proving the charge of corruption against a public servant, evidence about prior demand has its own importance. The reason being that the complainant is also considered to be an interested witness or a witness who is very much interested to get his work done from a public servant at any cost and, therefore, whenever a public servant brings to the notice of such an interested witness certain official difficulties, the person interested in work may do something to tempt the public servant to bye-pass the rules by promising him some benefit, which is not a legal remuneration. Sometimes, it has also been seen that the public servant initially resists such a temptation, but later on succumbs to it. But, the important fact in such a case is that the offer to make available some benefit for doing official work voluntarily comes from the complainant without there being any demand for the same by the public servant and if the public servant, on being goaded by such an interested party, falls prey to such an offer, the law would require a more careful approach to be adopted before placing the blame entirely upon the shoulder of such a public servant and would require a stricter proof from the prosecution about the public servant making a demand of bribe. There is a consistent line of precedents set by the Hon'ble Apex Court in this regard. There is a consistent line of precedents set by the Hon'ble Apex Court in this regard. In the case of Suraj Mal v. State (Delhi Administration) reported in AIR 1979 SC 1408 , the Supreme Court held that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Same principle has been reiterated in cases of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, reported in (2015) 10 SCC 152 ; Selvaraj v. State of Karnataka reported in (2015) 10 SCC 230 ; Satvir Singh v. State of Delhi (supra) and Krishan Chander v. State of Delhi, reported in AIR 2016 SC 298 . 10. In the instant case, upon careful consideration of the prosecution evidence, particularly of the complainant PW 1 Namdeo Bopchi as well as PW 2 Arvind Bansod, who is the shadow witness, I find that the prosecution could not establish beyond reasonable doubt the prior demand of bribe made by the respondent. The evidence of PW 1 Namdeo shows that some time in the year 1987 which is approximately 4 years prior to the date of the complaint which is 2.5.1991, the complainant had met the respondent in the presence of one Vitthal Bahurupi and paid him through the hands of Vitthal Bahurupi an amount Rs. 150/- as an illegal consideration for performing the official work of taking of mutation entry in respect of agricultural land purchased by the complainant. His evidence further shows that even on 28.4.1991, when another demand of Rs. 150/- was made allegedly by the respondent, it was witnessed by the acquaintance of the complainant, one Arun Ghormade. However, neither Vitthal Bahurupi nor Arun Ghormade, the independent witnesses though available, were not examined by the prosecution. No explanation whatever has been given by the prosecution for their non-examination as its witnesses, though they were available. In fact, statement of Arun Ghormade was also recorded by the Investigating Officer, but he was given up as prosecution witness. Later on, he entered into a witness box as a defence witness when he was examined as witness No.1 for the defence. He supported the case of the respondent by stating that the amount of Rs. In fact, statement of Arun Ghormade was also recorded by the Investigating Officer, but he was given up as prosecution witness. Later on, he entered into a witness box as a defence witness when he was examined as witness No.1 for the defence. He supported the case of the respondent by stating that the amount of Rs. 150/- was borrowed by the complainant from the respondent and same was returned by him to the respondent on 3.5.1991, when the respondent was allegedly entrapped. According to him, there was neither any prior demand nor any acceptance of the bribe amount. Such failure of the prosecution to examine the independent witnesses though available on the point of prior demand has created a serious doubt about the genuineness of the prosecution case. 11. The doubt so created about the prosecution case against the respondent has been further deepened by the fact that though the demand was categorically made on 28.4.1991, the complaint was lodged about 3 days thereafter, that is, on 2nd May 1991. No satisfactory explanation for such a delay has been given by the prosecution witnesses. This inordinate delay occurred in approaching the Anti Corruption Bureau, Amravati itself is indicative of the fact that there was something more in the whole case than what met the eye. The possibility of fabrication or concoction or exaggeration being made was not ruled out. 12. Then, there are also serious discrepancies in the evidence of complainant PW 1 Namdeo about the manner in which the demonstration regarding setting of the trap was given and same have been discussed at length in the impugned judgment. In order to avoid repetition, I would like to place reliance upon the observations of the learned Special Judge made in paragraph 28 to 43 of the impugned judgment. These observations are based upon the prosecution evidence and I do not find them to be erroneous or contrary to law in any manner. They further add to the doubts expressed about the prosecution case as against the respondent. As if this is not enough, even the shadow witness i.e. PW 2 Arvind Bansod's evidence appears to be of unreliable nature as admittedly, he was told to depose in the Court as stated in the panchanama as well as in his statement and that just before the deposition, he was made to go through the panchanama and his statement. As if this is not enough, even the shadow witness i.e. PW 2 Arvind Bansod's evidence appears to be of unreliable nature as admittedly, he was told to depose in the Court as stated in the panchanama as well as in his statement and that just before the deposition, he was made to go through the panchanama and his statement. The learned Special Judge, by relying upon the settled law (paragraph 28 of the impugned judgment) has held that version of this witness is inadmissible in evidence and deserves to be ignored. No fault could be found in the approach so adopted by the learned Special Judge. The Panch No.2, PW 3 Ravindra Agarkar, turned hostile to the prosecution and his evidence, therefore, has been rightly ignored by the learned Special Judge. 13. In the circumstances, I do not see any illegality or perversity in the impugned judgment and order. The appeal deserves to be dismissed and it is dismissed accordingly.