Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 1265 (BOM)

ABDUL MANNAN MOHD YUSUF v. STATE OF MAHARASHTRA

2019-05-16

B.P.DHARMADHIKARI

body2019
JUDGMENT : B.P. DHARMADHIKARI, J. 1. The appellant original accused No.2 has challenged his conviction under Section 12 of the Prevention of Corruption Act 1988 by Special Court designated under said Act in Special Case No.14 of 1999 on 11th July 2005. Judge of Special Court has sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs.1,000/- or in default to suffer simple imprisonment for two months. This Court has admitted the matter on 9.8.2005 and then suspended the substantive sentence. 2. The charge against appellant/accused No.2 was of aiding Accused No.1 ASI Pawar in accepting bribe amount from complainant and thereby committing offence under Section 12 of the Prevention of Corruption Act 1988. Accused No.1 ASI Pawar expired during the pendency of trial and hence special case against him was declared as abated. The trial therefore, proceeded only against accused No.2 i.e. present appellant. 3. From case of prosecution it appears that the complainant and his sons were involved in a property dispute which arose out of a loan transaction. The borrower and other persons connected with property had filed cases against complainant and his sons. We need not go into niceties of said aspect as trial Court itself has not examined those fassets because of death of accused No.1. Complainant claimed that accused No.1 had demanded amount of Rs. 5000/- from him for removing the police complaint filed by other side against him and his sons. After negotiations, the amount was reduced to Rs.2000/- and complainant paid Rs. 500/- immediately. Balance amount of Rs. 1500/- was to be paid on 26.5.1997 in Jagat Restaurant. 4. On said date the complainant and his son went to Jagat Restaurant and there the accused No.1 had a talk with accused No.2, who was running a pan shop. Then accused No.1 came to complainant and inquired whether amount was brought. Complainant declared that he had amount and hence accused No.1 told him to give that amount to Pan shop owner. Son of complainant then told accused No.1 that pan shop wala was a notorious person but accused No.1 told them that he had close acquaintance with accused No.2 since last 30 years. On direction of accused No.1, complainant then gave amount to accused No.2. Thereafter, the raid was conducted and amount was recovered from accused No.2. Son of complainant then told accused No.1 that pan shop wala was a notorious person but accused No.1 told them that he had close acquaintance with accused No.2 since last 30 years. On direction of accused No.1, complainant then gave amount to accused No.2. Thereafter, the raid was conducted and amount was recovered from accused No.2. Not only this, accused No.1 was also apprehended on spot and then he carried raiding party and ACB Officials to Police Station, where he handed over the documents of subject complaint. 5. Mr.A.H. Jamal, learned counsel appearing for the appellant submitted that offence under Section 7 or Section 13 itself has not been established and hence there is no question of offence under Section 12 being committed by appellant. He contends that there has to be first an independent finding that offence under Section 7 or other offences under Prevention of Corruption Act, 1988 has been committed and as trial court has not recorded such findings, the judgment is unsustainable. 6. Inviting attention to Section 313 Statement of accused, he states that the appellant has taken plea of denial and material on record does not show that he was party to any criminal design. Without prejudice, he submits that even if amount of Rs.1500/- is presumed to be received by appellant, there is nothing to demonstrate that he received that amount on behalf of accused No.1 or then he was aware of any mal intention on accused No.1 in the matter and ingredients of Section 12 are therefore, not satisfied. 7. He has placed reliance upon judgment of Hon'ble Apex Court in the matter of Sadashiv Mahadeo Yavaluje and anr Vs The State of Maharashtra, (1990) AIR SC 287 to urge that as ingredients of offence itself are not established judgment of conviction is unsustainable. 8. Learned A.P.P on the other hand, has relied upon evidence of complainant to urge that he has specifically pointed out that amount was received by appellant only after instructions and clearance given by accused No.1. He counted the notes and then kept it in his pocket. It is argued that when accused No.1 was standing at a short distance from Panthela, appellant could have instructed complainant to pay the money directly to accused No.1 and there was no need for him to accept that money. He counted the notes and then kept it in his pocket. It is argued that when accused No.1 was standing at a short distance from Panthela, appellant could have instructed complainant to pay the money directly to accused No.1 and there was no need for him to accept that money. Support is also taken from panch witness PW-3 Ashok Dhote to advance these arguments. 9. Learned APP adds that presence of accused No.1 on spot, his handing over document of complaint and other documents to ACB Officials, all show that amount was paid by complainant to appellant for getting rid of criminal complaint filed against him, his sons and his son- in-law. 10. Learned APP submits that in this situation the consideration by trial Court is neither erroneous nor perverse and hence this Court should not intervene in the present matter. 11. In brief reply, learned advocate Mr. Jamal submitted that appellant now is about 80 years old. Learned APP pointed out that at the time of raid, appellant disclosed his age to be 45 years only. 12. With the assistance of respective counsel, I have perused records. The judgment of trial court shows that the trial court has accepted the fact that after accused No.1 arrived, he had talk with the present appellant for two to three minutes and thereafter, the amount was given by the complainant to the appellant. Therefore, trial court has concluded that accused No.1(present appellant) had knowledge about the amount received by him and its nature. This findings is reached in paragraph No.22 of the judgment. 13. In paragraph No.18 the trial court has taken a note of improvement made by PW-2 complainant and PW-3 Panch. Both of them deposed that when amount was offered by complainant to appellant, the appellant had looked at accused No.1 and thereafter accepted that amount. This fact of accused No.2 getting a confirmation before accepting the amount from accused No.1 does not figure in their statements recorded by ACB Officials. The trial court however has found this omission while recording the statement was not put to PW-5 Investigating Officer and therefore has not been established as per law. Thereafter, it has proceeded to conclude that in any case, it is not fatal since the complainant had under cross-examination stated that accused No.1 ASI had a talk with appellant earlier and thereafter money was accepted by appellant. 14. Thereafter, it has proceeded to conclude that in any case, it is not fatal since the complainant had under cross-examination stated that accused No.1 ASI had a talk with appellant earlier and thereafter money was accepted by appellant. 14. The evidence of PW-2 complainant Sudhakar shows that after he was told by accused No.1 to hand over the money to pan shop owner, he went to appellant and told him that accused No.1 had directed him to give that amount to appellant. The appellant received the amount, counted it and kept it in pant pocket. Thereafter, accused No.l told him to go. 15. Evidence of PW-3 Panch Ashok is on the same lines. 16. Thus, both these witnesses do not state that they told the appellant that amount was being payed to him for making it over to accused No.1. Material on record does not show that appellant was aware of any criminal complaint filed against the complainant which was being investigated into by accused No.1. It does not show that present appellant was aware of relationship or understanding between the complainant and accused No.1. The demand made by accused No.1 and payment of Rs.1500/- towards its fulfillment are therefore not proved to be the facts within knowledge of present appellant. The material only demonstrates that the appellant received amount from complainant. Nature of that payment was not disclosed to appellant and knowledge of appellant about it is not brought on record. 17. Judgment of Hon'ble Apex Court reported in Sadashiv Mahadeo Yavaluje and anr..Vs..The State of Maharashtra (supra) is on Section (5)(1)(d) and (2) of Prevention of Corruption Act 1947. The Hon'ble Apex Court there has found that evidence of complainant and trap witness did not establish that ingredients were satisfied. Facts there show that accused No.1 in the said matter had instructed complainant to pay Rs.100/- to accused No.2. On two occasions it was not paid to accused No.2. However, after some time amount was paid to accused No.2 and complainant alleged that it was to be paid to accused No.1. Accused persons were convicted and their conviction was maintained by High Court. Hon'ble Apex Court found that apprehending accused No.2 in a trap revealed failure of trap against accused No.1. It is further observed that there was no evidence against accused No.1 except the story given out by complainant. Accused persons were convicted and their conviction was maintained by High Court. Hon'ble Apex Court found that apprehending accused No.2 in a trap revealed failure of trap against accused No.1. It is further observed that there was no evidence against accused No.1 except the story given out by complainant. As regards accused No.2, Hon'ble Apex Court found that merely because he was entrusted with some money to be passed on the accused No.1, it could not be held that he was guilty of any one of the offences unless it was established that he was party to the alleged understanding arrived at between complainant and accused No.1. Hon'ble Apex Court also found that arrangement if any was between accused No.1 and complainant and accused No.2 was not party to it. 18. Facts of matter at hand are identical. Here complainant or panch witness PW-3 do not depose that they informed the appellant that Rs.1500/- was being deposited with him for its transmission to deceased accused No.1. In this respect, perusal of Section 12 of 1988 Act becomes essential. It contemplates abetment of any offence punishable under 1988 Act. Hon'ble Apex Court has in the matter of Central Bureau of Investigation Vs Shukla and Ors., (1998) 3 SCC 410 considered the provisions of section 12 of Prevention of Corruption Act 1947. Relevant discussion is contained in paragraph No.50 and 51. Hon'ble Larger Bench of Apex Court finds that as "abetment" is not defined under Prevention of Corruption Act, it has to refer to its exhaustive definition in Section 107 of Indian Penal Code. Discussion by Hon'ble Court shows that for first two clauses of Section 107 of Indian Penal Code, it it not necessary that offence instigated should have been committed. While considering clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation of (2) and arrived at findings that when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. Said paragraph No.50 reads as under:- "Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the "abetment". Since "abetment" has not been defined under the Prevention of Corruption Act we may profitabley refer to its exhaustive definition in Section 107 of the Indian Penal Code. Said paragraph No.50 reads as under:- "Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the "abetment". Since "abetment" has not been defined under the Prevention of Corruption Act we may profitabley refer to its exhaustive definition in Section 107 of the Indian Penal Code. As per that Section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses; (i) instigates any person to do that thing, or (ii) engages with one or more other person or persons in any conspiracy for the doing of that thing ........, or (iii) intentionally aids, by any act or illegal omission, the doing of that thing. So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the scope of the word "aid" in the third clause it would be advantageous to see Explanation 2 in Section 107 I.P.C. which reads thus: "Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does any thing in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." It is thus clear that under the third clause that when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed". 19. These observations of Hon'ble Apex Court also apply in present facts. It was never the case of prosecution that the appellant instigated complainant to pay bribe or then engaged himself and conspired to facilitate receipt of bribe. In fact there is no charge of conspiracy at all. The only remaining part therefore, is of aiding and, the provisions of Clause -III of section107 show that aiding has to be with intention. Facts necessary to demonstrate that the appellant was dwelling under such intention are not brought on record. Prosecution has only established the payment of Rs.1500/- by complainant to appellant. However, its nature as bribe could not be established. 20. I therefore find conviction of appellant under Section 12 of Prevention of Corruption Act, 1988 unsustainable. 21. Facts necessary to demonstrate that the appellant was dwelling under such intention are not brought on record. Prosecution has only established the payment of Rs.1500/- by complainant to appellant. However, its nature as bribe could not be established. 20. I therefore find conviction of appellant under Section 12 of Prevention of Corruption Act, 1988 unsustainable. 21. I, therefore proceed to pass the following order:- (i) The judgment and order of conviction dated 11th July 2005 delivered by Special Court Nagur in Special Criminal Case No.14 of 1999 is quashed and set aside. (ii) The appellant is acquitted of the said offences. (iii) Bail bond furnished by him stands cancelled. (iv) Muddemal property be dealt with as directed by trial court after appeal period is over.