Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 1631 (BOM)

ANNA MAHADU AROTE v. STATE OF MAHARASHTRA

2018-07-07

V.M.DESHPANDE

body2018
JUDGMENT : 1. Present appeal challenges the judgment and order of conviction dated 25th February, 2004 in Special Case No. 15 of 1997 passed by the learned Special Judge, Greater Bombay. By the impugned judgment, the Appellant after having found guilty of the offence punishable under section 7 of the Prevention of the Corruption Act, 1988 was directed to suffer rigorous imprisonment for one year and pay fine of Rs. 2,000/- and in default to suffer further R.I. for three months. 2. So also the Appellant was held to be guilty of the offence punishable under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988 and on that count he was sentenced to suffer RI for two years and pay fine of Rs. 3,000/- and in default to suffer further RI for three months. Facts : 3. The prosecution case, as it was disclosed during the course of trial, is as under : 4. On 5-6-1996 Baburao Shivaji Parate (PW 7) was discharging his duties as Police Inspector in Anti Corruption Bureau (for short the “ACB”). On the said day, Ramji Patel (PW 1) came to ACB office and lodged a complaint against the Appellant. On the basis of the complaint, PW 7 registered the offence against the Appellant vide C. R. No. 22 of 1996. The said complaint / FIR is at Exhibit 10. 5. As per the complaint, PW 1 Ramji Patel was running Kirana shop at Suresh Nagar Godawala Chawl, Andheri (West), Mumbai. About six months ago, he purchased a hut admeasuring 40’ x 10’, which was situated 30’ away from his shop. The said shop was purchased from Md. Umar Shaikh for a valuable consideration of Rs. 70,000/-. 6. The FIR further recites that on 3-6-1996 Bombay Municipal Corporation demolished the said hut. After its demolition, he was intending to reconstruct the same and started such activity at about 6.00 p.m. That time, one Police Hawaldar came there and asked him to stop reconstruction and he was directed to meet the Appellant at Lokhandwala Police Chowky (Beat Chowky), which falls within the jurisdiction of Oshiwara Police Station. It is also stated in the FIR accordingly he accompanied the said Police Hawaldar and met the Appellant and that time Appellant asked him that he is not giving any money and there is no permission for the construction of the work. It is also stated in the FIR accordingly he accompanied the said Police Hawaldar and met the Appellant and that time Appellant asked him that he is not giving any money and there is no permission for the construction of the work. According to the complainant, Appellant asked him that the complainant should pay something to him, otherwise should not start the construction work. The complaint further states that upon that the complainant told the Appellant that he would contact his brother and then will meet the Appellant. Thereafter, he left police Chowky and stopped reconstruction work. 7. The complaint/FIR (Exhibit 10) further states that on 5-6-1996 at about 2.30 p.m., he along with brother Dhanaji Patel (PW 5) went to Lokhandwala Beat Chowky and contacted the Appellant. On noticing them, Appellant asked as to whether he has started construction, on that, it was replied by the complainant that he came there for obtaining his permission. Upon that, the Appellant demanded Rs. 10,000/- to start with the construction work. When the complainant expressed inability to give such amount, the Appellant made demand to the effect that complainant shall pay Rs. 5,000/- on the same day and remaining Rs. 5,000/- in the next week. On that, According to the complainant, reluctantly, Ramji Patel (PW 1) told the Appellant that at about 8.00 p.m., he will bring Rs. 5,000/- and left the Beat Chowky. Since the complainant was not ready to give bribe, he lodged the complaint in the office of ACB. 8. After complaint was reduced into writing by PW 7 Baburao Parate, he decided to lay trap on Appellant and in pursuance to the said, he called two public servants from the office of the Pay & Accounts to act as panchas. The public servants, who were called to act as panchas, were PW 2 Parshuram Bedarkar and one Pramod Salunke. They introduced to the complainant. After their introduction to the complainant, PW 7 Parate called a constable to give demonstration on effect and use of anthracene powder to panchas and to the complainant. The pre-trap panchanama executed, containing all the activities at the office of ACB, is at Exhibit 20. 9. The officer asked PW 2 Parshuram Bedarkar to remain with the complainant Ramji Patil throughout and witness the transaction and hear the conversation. The pre-trap panchanama executed, containing all the activities at the office of ACB, is at Exhibit 20. 9. The officer asked PW 2 Parshuram Bedarkar to remain with the complainant Ramji Patil throughout and witness the transaction and hear the conversation. The complainant was also instructed to part money to the Appellant only on his demand and thereafter he was asked to give the signal by moving his hand through his hairs. Another panch was asked to remain present with the raiding party. 10. The raiding party proceeded towards Lokhandwala Complex and the vehicle was stopped at Sundarvan Society. From there, the investigating officer directed PW 1 Ramji Patel and PW 2 Bedarkar to go to Lokhandwala Beat Chowky and the raiding party took position along with Panch No. 2 near the Chowky. 11. The prosecution case further proceeds that the complainant along with PW 2 Bedarkar met the Appellant and on his demand, an amount of Rs. 5,000/- was handed over to the Appellant and after his acceptance of the amount, the prearranged signal was given. Thereafter, the investigating officer along with the police party apprehended the Appellant. 12. Ultra violet light was thrown on hands, clothes and body of the Appellant and in that shine of anthracene power was noticed on both his palms, fingers, front portion of his shirt, front portion of his pant and Rs. 5,000/- smeared with powder was found in his right side shirt pocket. The panchanama of all his acts were drawn, and it is at Exhibit 21. 13. After completion of the investigation, papers of the investigation were sent to the sanctioning authority and after obtaining sanction (Exhibit 29), charge-sheet was filed before the Court of law. 14. In order to bring home the guilt of the Appellant, the prosecution examined in all 7 witnesses and also relied upon various documents, those were proved during the course of trial. The Appellant was examined by the learned Judge of the Court below under section 313, Criminal Procedure Code. He also filed his additional statement (Exhibit 38) along with the various documents. From the line of cross-examination of the prosecution witnesses at the hands of the Appellants and as per the documents filed on behalf of the Appellant before the Court below, the defence of the Appellant is that in order to falsely implicate him, the tainted currency notes were thrusted. 15. From the line of cross-examination of the prosecution witnesses at the hands of the Appellants and as per the documents filed on behalf of the Appellant before the Court below, the defence of the Appellant is that in order to falsely implicate him, the tainted currency notes were thrusted. 15. After appreciation of the prosecution case, the learned Judge of the Court below found that the Appellant has committed the offences, for which he was charged and accordingly, the sentence was imposed. Hence, this appeal. Submissions : 16. Heard the learned counsel Mr. Satyavrat Joshi, appearing for the Appellant and Mr. Amit Palkar, learned Additional Public Prosecutor for the Respondent State. Both the learned counsel vehemently submitted for their respective briefs. 17. According to the learned counsel for the Appellant, the evidence of PW 2 Bedarkar, a panch is silent on the point as to why there was necessity to lay trap on the Appellant. He also submitted that Exhibit 20 the pre-trap panchanama does not disclose the purpose. So also, substance of the complaint is not found in the pretrap panchanama. It is also his submission that the evidence of PW 2 Panch cannot be admitted in evidence in respect of proof of demand at the time of trap. He also submitted that there is no corroboration to the evidence of complainant from PW 2 Panch that money was paid after it was demanded by the Appellant. It is also his submission that the complainant was nursing grudge in his mind since there were complaints against the complainant and in that, statement of the complainant was recorded by the Appellant. He, therefore, submitted that the conviction cannot stand scrutiny of law and prays that the appeal be allowed. 18. Per contra, the learned Additional Public Prosecutor would submit that the tainted currency notes were found to be in possession of the Appellant. He also submits that immediate demand, prior to the acceptance of the bribe amount, is duly proved and he therefore, submitted that the Court below has taken a correct view and has rightly convicted the Appellant. Hence, he has prayed that the appeal be dismissed. Considerations of the prosecution case : 19. He also submits that immediate demand, prior to the acceptance of the bribe amount, is duly proved and he therefore, submitted that the Court below has taken a correct view and has rightly convicted the Appellant. Hence, he has prayed that the appeal be dismissed. Considerations of the prosecution case : 19. In my view, the Court below has rightly found that as a rule of prudence, the Court wants corroboration to the evidence of complainant as in all trap cases, complainant is always an interested witness, who wants trap should succeed and therefore, corroboration is required. 20. The law is well crystallised that demand of illegal gratification is sine qua non for the constitution of an offence under the provisions of the Act. It would be useful to refer the observations of the Hon’ble Apex Court in the authoritative pronouncement of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, 2009 MhLJ Online (Cri.) (S.C.) 6 = (2009) 15 SCC 200 which read as under : “In disputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz. Demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.” Thus, it is imperative on the part of the prosecution to prove prior demand made by an accused. 21. 21. In the present case the evidence of the complainant shows that on three occasions, there was a demand from the Appellant. The first and second demands’ reference is found in FIR (Exhibit 10). Insofar as the first demand is concerned, the FIR and the evidence of the complainant (PW 1) states that on 3-6-1996 after his hut was demolished by the authorities of the Bombay Municipal Corporation, the complainant started reconstruction of the same and at that time one Police Hawaldar came to him and asked him to stop the work of reconstruction and the said Hawaldar told him that he is called by the Appellant at Lokhandwala Police Chowky (Beat Chowky) and accordingly at 8.30 p.m. he went to police chowky and at that time the Appellant directed him that unless something is paid to him, he could not start the construction work of the hut. As per the FIR and evidence of the complainant, that time the complainant told the Appellant that he would contact his brother in that behalf and left the police chowky. 22. Be that as it may, except the version of the complainant in respect of the said demand, there is no corroboration. Further evidence and the FIR is completely silent about the exact amount that was demanded by way of bribe. In my view, learned Judge of the Court below has rightly not kept any reliance on this demand. 23. According to the prosecution, the second demand is made on 5-6-1996. As per the evidence and the First Information Report, Appellant went to police chowky and at that time Dhnanaji Patel (PW 5) was accompanying with him. In the FIR, it is stated that Dhanaji Patel is his brother. However, in his crossexamination complainant did state that he is acquainted with him. In that behalf, in the evidence Dhanaji Patel (PW 5) states that complainant is from his community and both of them hail from the same native place. 24. As per the complaint (Exhibit 10) and as per the evidence of the complainant, on the said day and time the Appellant demanded Rs. In that behalf, in the evidence Dhanaji Patel (PW 5) states that complainant is from his community and both of them hail from the same native place. 24. As per the complaint (Exhibit 10) and as per the evidence of the complainant, on the said day and time the Appellant demanded Rs. 10,000/- to start with the construction work of the hut and when the complainant expressed his inability to give that much of amount, it is further version in the FIR and evidence of the complainant that at that particular point of time, Appellant suggested that presently the complainant shall pay Rs. 5,000/- and remaining Rs. 5,000/- shall be paid in the next week, to which the complainant reluctantly agreed. 25. Thus, it is the specific case of the prosecution that in presence of the Dhanaji Patel (PW 5), Appellant demanded Rs. 10,000/- and not only that, gave suggestion that presently Appellant should pay Rs. 5,000/- and remaining Rs. 5,000/- can be paid in the next week. 26. PW 5 Dhanaji Patel did not support the prosecution at all on the point of demand or agreement of the Appellant that he will initially pay Rs. 5,000/-, though reluctantly. Dhanaji Patel (PW 5) was permitted to be cross-examined and accordingly the learned Special Prosecutor thoroughly cross-examined the said witness. However, nothing could be brought on record to substantiate case of the prosecution. 27. It is thus clear that insofar as second demand on 5-6-1996 at 2.30 p.m. is concerned, the only available version is of complainant and that too uncorroborated one. Therefore, there cannot be any hesitation in the mind to reject claim of the prosecution that the prosecution was successful in establishing that there was a demand of Rs. 10,000/- from the Appellant. 28. Insofar as last demand is concerned, it occurred on 5-6-1996 at 8.30 p.m. After the complainant left the office of the ACB with anthracene smeared notes in his possession, he was accompanied by PW 2 Parshuram Bedarkar, the shadow panch. As per the evidence of the complainant, both of them after alighting from the police vehicle proceeded to police chowky. There, he noticed presence of Appellant. According to the version of the complainant, as appearing in his evidence, on seeing them, the Appellant quipped ^^vkykl dk** . Upon that, complainant replied ^^gak lkgc- vkius tSlk cksyk Fkk oSlk vk x;k** . There, he noticed presence of Appellant. According to the version of the complainant, as appearing in his evidence, on seeing them, the Appellant quipped ^^vkykl dk** . Upon that, complainant replied ^^gak lkgc- vkius tSlk cksyk Fkk oSlk vk x;k** . Insofar as this version is concerned, there is a corroboration from PW 2 Parshuram Bedarkar. In my view, this conversation between Appellant and the complainant cannot be stretched to record finding that there was monetory demand at the hands of Appellant. 29. According to the complainant, thereafter Appellant asked him in Hindi ^^eSus tks cksyk Fkk oSlk iSlk yk;k D;k** and upon that complainant replied ^^gak lkgc- tSlk vkius iakp gtkj :i;k cksyk Fkk] oSlk yk;k** . Insofar as this version is concerned, according to the prosecution, there is a corroboration from PW 2 Parshuram Bedarkar. 30. Evidence of PW 2 Bedarkar would show that at the fag end of his examination-in-chief, learned Special Public Prosecutor sought permission to contradict him (under sub-section (2) section 162, Criminal Procedure Code) and the said permission was granted by the learned Judge. 31. In my view, the procedure followed by the learned Judge is not proper. Sub-section (2) of section 162 reads as under : “162. Statement to police not to be signed : Use of statement in evidence.— (1) … (2) Nothing in this section shall be deemed to apply any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act. Explanation.— An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.” 32. Thus, plain reading of sub-section (2) of section 162, Criminal Procedure Code shows that nothing in section 162 shall be deemed to apply to any statement falling under the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 or to affect the provisions of section 27 of the Act. 33. However, the learned Court below gave permission to the learned Public Prosecutor to put the suggestions, which can be put in cross-examination without declaring the witness hostile. 33. However, the learned Court below gave permission to the learned Public Prosecutor to put the suggestions, which can be put in cross-examination without declaring the witness hostile. When this witness was not supporting the prosecution on material aspect, it was open for the learned prosecutor and the Court below to follow the procedure as prescribed in section 162 of Criminal Procedure Code. In that behalf, law well settled in Tahsildarsing and anr. vs. State of U.P., AIR 1959 SC 1012 . 34. Here, it would be useful to refer the following observations of the Division Bench of Gujarat High Court in the case of Koli Nana Bhana vs. State of Gujarat, 1984 Law Suit (Guj) 119, which reads thus : “4. During the recording of the evidence witness Unad Bhim Ex. 80 the learned Public Prosecutor made a request to the Court to permit him to put questions which can be put in cross-examination without declaring the witness hostile and that request was granted by the learned trial Judge. There is nothing in the Evidence Act showing that a witness has to be or can be declared hostile. When the prosecution feels that the witness called for the prosecution is not telling the whole truth or that he suppresses some truth two courses are open. One course is to request the Court under section 154 of the Evidence Act to permit the prosecution to put to the witness questions which might be put in cross-examination by the other side. If that permission is granted then the prosecution will naturally be entitled to put such questions and will also be entitled to contradict the witness with his or her police statement as provided by the proviso to sub-section (1) of section 162 of Criminal Procedure Code. The other course open is not to make any such request under section 154 of the Evidence Act but only to request the Court as laid down by the proviso to sub-section (1) of section 162, Criminal Procedure Code. to permit the prosecution to contradict the witness in the manner provided by section 145 of the Indian Evidence Act 1872. When the first course is adopted then in a loose sense it is said that the prosecution wants to declare witness hostile. If the second course is adopted viz. to permit the prosecution to contradict the witness in the manner provided by section 145 of the Indian Evidence Act 1872. When the first course is adopted then in a loose sense it is said that the prosecution wants to declare witness hostile. If the second course is adopted viz. to contradict the witness with his police statement as laid down in the proviso to subsection (1) of section 162, Criminal Procedure Code then only it can be said and that too in a loose sense that the prosecution does not want to declare the witness hostile. In view of this it is difficult to understand how the learned public prosecutor made a request to the trial Court to permit him to put questions which may be put in cross-examination without declaring the witness hostile and how the learned trial judge granted that request. It appears that the learned public prosecutor who conducted the prosecution as also the learned trial Judge lost sight of this distinction between the two courses to be adopted by the prosecution and that is why such a request was made by the learned public prosecutor and granted by the learned trial Judge.” 35. In the present case, evidence of PW 2 Parshuram Bedarkar would show that after obtaining permission from the learned Judge, the attention of this prosecution panch witness was not drawn to his statement, nor when the investigating officer Baburao Parate (PW 7) was in the witness box. The contradictions were not proved. In that view of the matter, there is no hesitation, in my mind, to record a finding that the Court below has committed an error in allowing the learned prosecutor to put leading questions without following proper procedure for contradicting the witness, and also relied on such version of prosecution witness to record a finding of guilt against the Appellant. 36. According to the complainant’s evidence, thereafter he was brought outside the police chowky and at that time the Appellant asked ^^iSlk ns nks- xkMh is cSBks vkSj ge ckgj tkds vkrs gSa** . To a Court question, the complainant has replied that at that particular point of time panch witness was sitting inside the police chowky. Thus, PW 2 Panch Parshuram Bedarkar was not with him at the time of demand. No doubt, it is brought on record that distance between motorcycle and police chowky was 4 ft. To a Court question, the complainant has replied that at that particular point of time panch witness was sitting inside the police chowky. Thus, PW 2 Panch Parshuram Bedarkar was not with him at the time of demand. No doubt, it is brought on record that distance between motorcycle and police chowky was 4 ft. However, there is no positive evidence that utterances of demanding money were loud and audible to the panch witnesses. Therefore, to that extent also, in my view, prosecution has not proved the demand, alleged to have been made by the Appellant. 37. According to the prosecution, the Appellant has accepted the amount by his right hand kept the same in his right side shirt pocket. It is also case of the prosecution that thereafter pre-arranged signal was made and the anti corruption officials pounced the Appellant. 38. According to the defence, the complainant was in the habit of encroachments on the government lands and on various occasions complaints were lodged against him in the Oshiwara Police Station. It is also admitted fact that on the basis of the complaints made against the complainant, he was called in the police chowky and the present Appellant was required to record the statements of the complainant on 18-9-1995, which are at Exhibits 15 and 15A. According to the defence, therefore, the complainant was nursing grudge against the Appellant and the amount was thrusted in his pocket. Post-trap panchanama Exhibit 21 shows that not only anthracene powder was found on the right hand of the Appellant, but traces were also seen on his left hand, both cheeks, on the front portion of his uniform and stomach portion. If really the notes were accepted by the right hand, there was no occasion for noticing the traces of anthracene powder on both cheeks and stomach portion of uniform of the Appellant. In my view, that gives some force in the submission of the defence that at the time of thrusting there was scuffle and tainted notes were put in the pocket. There is no explanation whatsoever given from the prosecution side as to how there were traces on the left hand, both cheeks and on his stomach portion and uniform of the Appellant. There is no explanation whatsoever given from the prosecution side as to how there were traces on the left hand, both cheeks and on his stomach portion and uniform of the Appellant. Further, in the present case, the powder applied was anthracene powder, therefore, there is no question of sending notes and clothes to the C.A. Only the portion of the clothes and the notes which were seized at the time of trap were encircled. In the present case, post-trap panchanama is blissfully silent that the clothes and notes were duly sealed on the spot. In my view, this aspect also raises suspicion about the authenticity of the prosecution version as a whole. 39. It will have to be pointed out that prosecution has also examined PW 4 Shivaji Vichare to prove the happenings in the police chowky at the time of demand, just prior to the trap. Even this witness has also not supported the prosecution case. 40. On the re-appreciation of the entire evidence of the prosecution, I am of the view that the prosecution has utterly failed to prove its case beyond reasonable doubt against the Appellant. Not only that, there appears reason for the complainant to implicate the Appellant, and therefore, after considering the entire prosecution case, I pass the followed order. ORDER (i) Appeal is allowed; (ii) The judgment and order of conviction together with sentence passed by the learned Special Judge, Greater Bombay dated 25th February, 2004 in Special Case No. 15 of 1997 is hereby quashed and set aside; (iii) The Appellant is acquitted of the offences punishable under section 7, 13(1)(d), read with 13(2) of the Prevention of Corruption Act, 1988; (iv) Fine amount, if paid, be refunded to the Appellant. Appeal allowed.