1 appeal 101 of 97.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 101 OF 1997 Reginald Philip D’souza Service age:39 years, residing at: C-36, Mayurdeep Rajaji Park, Dombivli East, District:Thane, Maharashtra .. Appellant -versus The State of Maharashtra, Central Bureau of Investigation .. Respondents . Mr. S.V. Marwadi, for the Appellant. Mr. Mandar Goswami, Public Prosecutor for Union of India Mr. Y. M. Nakhawa, APP for the State. CORAM: R.C. CHAVAN, J. JUDGMENT RESERVED ON : 28th January, 2011 JUDGMENT PRONOUNCED ON : 31st March,2011 JUDGMENT 1. This appeal is directed against the judgment by the Special Judge, Greater Bombay, convicting the appellant for the offence punishable under section 161 of Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentence of R.I. for one year each on both counts, imposed upon the appellant. 2. The facts which are material for deciding this appeal are as under:- 3. The appellant, and co-accused Mohd. Yusuf Moinodin Kazi and Shashikant Vaman Bhogle, (who are acquitted by the 2 appeal 101 of 97.sxw learned Special Judge), were working as Inspectors, Central Excise. One Vishvanath Kotian was partner of M/s Baba Scheming Company which manufactures Weft Tensioner. The company had filed declaration with the Central Excise Authority were told their activities did not come within the purview of Central Excise. On 5.9.1987, one Prakash, an employee of the company, went to deliver a parcel to a client, when he was stopped by persons from Excise Department. He came with the appellant and co-accused Kazi to the office of Vishvanath Kotian. Vishvanath was told that company was required to file declaration every year and Central Excise Authority would determine his case every year. As this was not done, the goods of the company were liable to be detained and factory was to be sealed. On his asking as to what could be done, bribe of Rs. 2500/- was demanded for settling the matter. Eventually after bargaining the amount was settled at Rs.1500/-. Thereafter Vishvanath was allowed to deliver the goods. The complainant was asked to pay money by the next Monday. 4. On a report by the complainant, in the Anti Corruption Bureau, the Bureau prepared for a trap, performed necessary pre trap formalities, recorded panchnama and then proceeded to lay trap. On 9.9.1987, the appellant was trapped receiving bribe amount of Rs.1500/- kept in an envelope. Panchnama of the trap was drawn up and an offence was registered. On completion of investigation, chargesheet was sent. 3 appeal 101 of 97.sxw 5. The learned Special Judge, Greater Mumbai, charged appellant and co-accused Md Yusuf and Shashikant Bhogale, of the offences punishable under section 161, 120 (B) of the Indian Penal Code as also under Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947. Since all the accused pleaded not guilty to the said charge, they were put on trial at which the prosecution examined in all 9 witnesses to bring home guilt of the accused person. After considering the prosecution evidence in the light of defence raised, learned Special Judge, proceeded to acquit the co-accused of all the charges but convicted and sentenced appellant as indicated in the preceding paragraphs. Aggrieved thereby the appellant has preferred this appeal. 6. I have heard learned counsel for the appellant and learned APP and with the help of learned counsel I have gone through the record. 7. The learned counsel for the appellant submitted that this Court must look into the entire evidence tendered at trial and in support cited a judgment of Hon’ble Supreme Court. In Vijayendra Kumar -vs- State of Bihar and anr CDJ 2005 SC 065, on the question of how High Court should be deciding Criminal Appeals, the Supreme Court ruled that discussion of evidence is necessary while deciding criminal appeal. There could be no doubt that evidence would have to be looked into by this Court since this is the only appeal permissible as of right for 4 appeal 101 of 97.sxw the person convicted. Therefore, I have gone through the entire evidence in order to find out whether the conclusions drawn are correct or not. 8. The learned counsel for the appellant first submitted that the report from the Chemical Analyser itself would rule out complicity of the appellant in accepting bribe. The Chemical Analyser Vijayendra Shantikrishan, himself was examined as P.W.8. He stated that he had received certain Exhibits in his Laboratory and had given his report dated 7th December, 1987, which has been marked as Exhibit 34. The report shows that Exhibits A to E tested positive for phenolphthalein. Exhibit A was the sample of white powder. Exhibit B and C were the left and right hand wash of appellant. Exhibit D were the Pants worn by the appellant, Exhibit E, was the handkerchief. The report was assailed on the ground that it did not bear any date as also the fact that was both of hands could not have contained phenolphthalein. This has to be considered in the light of evidence about the trap itself. 9. The complainant P.W.1 Vishvanath Kotian has stated about the visit of appellant and co-accused Kazi. He had also stated about the demand of Rs.2,500/- for settling the matter. Kazi had asked the first informant to meet the Superintendent of Central Excise Mr. Sabnis, who was at the Security Booth. Kazi told Mr. Sabnis to tell the complainant to go home and get Rs. 1,500/- and then Kazi would allow the complainant to deliver the 5 appeal 101 of 97.sxw goods. Learned counsel for the appellant, submits that in the light of this evidence, it is clear that the bribe was in fact demanded by Kazi with the connivance or approval or participation of Sabnis. Sabnis was not at all prosecuted, whereas Kazi has been acquitted. Learned counsel, therefore, submitted that big fish was left out and the appellant was made a scape goat and therefore, the learned Judge, should have acquitted the appellant as well. 10. P.W.1 Vishvanath Kotian further stated that since he did not pay money and did not return to the appellant’s office, a message was left with one Datta Salian, asking the complainant to contact on a telephone number. On Monday at abut 4.30 p.m. the appellant came to the complainant’s factory and asked Datta Salian as to where the complainant was. Thus, it is not that the appellant had left the matter to be dealt with by Kazi and Sabnis. He visited the factory of complainant on next Monday, in order to pursue demand of bribe. It is then that the complainant approached the police. 11. Vishvanath Kotian, then stated that he had brought Rs. 1,500/-in currency notes for the purpose of laying a trap. Accordingly Panchas were called and panchnama was drawn up. Vishvanath Kotian, was then made to call on the telephone number which had been given by accused persons. He called on the numbers and asked for Mr. Kazi, who stated that he would come to the factory at about 5.30 pm. to collect the money. 6 appeal 101 of 97.sxw Learned Counsel for the appellant therefore, submits that it was Kazi, who had demanded the money and was to be paid. The first informant and the raiding party waited till 7.00 p.m. that day, but since none turned up, the packet of currency notes was destroyed. On the next day i.e. 9.9.1987, again a trap was arranged. Vishvanath Kotian was instructed to put the currency notes coated with phenolphthalein in his left side shirt pocket. Vishvanath called upon on the telephone number given by Kazi. Kazi called Vishvanath to his office at about 2.30p.m. Vishvanath Kotian accompanied by panch witness went to the office of Kazi where Kazi, Sabnis and the appellant D'souza were sitting. According to Vishvanath, two neighbouring factory owners Mr. K.R. Shah and Prithiviraj, were also present in the office. Vishvanath claimed to have told Kazi that he had come as directed. Then Kazi told the appellant to help Vishvanath in filling up some forms. The witness got blank forms from Stationers and then appellant showed Vishvanath as to how forms were to be filled up. Then the appellant asked Vishwanath, “What about him” meaning thereby as to what about their reward. Vishvanath claims to have told the appellant that he had brought it and asked that whether he should give it. Thereupon the appellant said “yes”. The appellant took money from Vishvanath and put in his trouser pocket. Panch Manoj Gholap went out and signaled to Mr. Thakur, who was standing outside, and Thakur then signaled raiding party who were waiting at some distance. 7 appeal 101 of 97.sxw The raiding party entered the premises. The appellant and Kazi started running away. The appellant started begging for mercy. The tests were conducted by putting lime water over the currency notes with the appellant, his trouser packet and the appellant's fingers . 12. Since there was some discrepancy about notes being put in envelope, the Special Public Prosecutor was permitted to put leading questions and Vishvanath clarified that on second occasion when trap was laid ie on 9th September, 1987, the currency notes were kept in his pocket and not in an envelope. 13. P.W.3 Manoj Gholap, was the panch who accompanied Vishvanath, at the trap. He stated about pre trap panchnama and proved it as also about the failed trap on 8.9.1987. He also stated about the incident dated 9.9.1987 and corroborated version of Vishvanath substantially. P.W.3 Manoj stated that on appellant's asking Vishvanath, as to what about reward, Vishvanath asked the appellant whether he should give money there only since others were sitting, whereupon the appellant stated that it was OK, since all were his people. P.W.3, Manoj sated that Vishvanath Kotian gave the money to appellant which he took with his left hand and put it in his left hand pant pocket. Manoj then asked for the toilet, the appellant got up and took him to the door of entrance whereupon Manoj gave necessary signal . 14. P.W. 3 Manoj stated that the appellant was asked to 8 appeal 101 of 97.sxw dip his hands in lime water solution in glass tumblers. The tumbler in which appellant dipped his right hand did not show any reaction obviously because notes had been received by the left hand. 15. P.W.9 Suryakant Jaichandra, Raiding Oficer, had also stated that there was colour change when right hand of appellant was dipped in the lime water solution. He had stated that the solutions in which hands of appellant were dipped were put in bottles and the bottles were sealed. These bottles had been sent to the Forensic Science Laboratory which P.W.8, Vijendar had examined. When hand wash of right hand of the appellant did not show any colour change, presence of phenolphthalein in that solution is indeed curious. One can understand that solution may fade with passage of time, even if it contained phenolphthalein, but solution which was not supposed to contain phenolphthalein has been found to contain phenolphthalein and therefore, learned counsel for the appellant submits there is something fishy, about the appellants finger have been found tainted. 16. As rightly submitted by the learned Public Prosecutor, and rightly observed by the learned trial Judge, that the report from Forensic Science Laboratory, only provides corroboration and guarantee of the correctness of eye witness account. He further submitted that it is not that the wash of the left hand of the appellant did not show presence of phenolphthalein, which is 9 appeal 101 of 97.sxw more material since tainted money had been accepted by the appellant by his left hand. Therefore the discrepancy in the report of the laboratory, is immaterial. 17. P.W.2 Gopal Kulkarni, the Superintendent of Central Excise had explained the circumstance in which certain factories were covered under the Central Excise Act and certain activities were not covered. He had also explained the procedure in the office. His evidence is unhelpful for the appellant’s establishing absence of his complicity. P.W.4, Manohar Raikar was the Assistant Collector of Central Excise and he too stated about the procedures in respect of filing declaration by small scale units. His evidence does not show that the appellant had no business to enquire about the activities of Vishvanath. P.W.5, Rajashri Dilip Vardein was serving as typist with Vishvanath. She states that in September, 1987, two persons had come to the factory enquiring about her boss. She states that she also noted their message and also the telephone number given by them and told her boss upon his return. She identified the appellant and Kazi as persons were visiting her office. Her not remembering the dates can not reduce value of her evidence. 18. P.W.6, Kanji Raghunath Prithviraj, was present on 9.9.1987 in the office of the appellant, on appointment alongwith his books. He did not actually see the appellant having received the money since he was sitting with his back to the appellant. But he stated that the appellant’s left hand was dipped in the 10 appeal 101 of 97.sxw glass of water which was turned pink, whereas the glass in which appellant dipped his right hand did not turn up pink. In the cross examination witness stated that earlier in the day, P.W. 1 Vishvanath introduced himself and told this witness that he would have to bear with P.W.1 for all the inconvenience on that day as Excise officer had demanded a bribe of Rs.2,500/-, which he had brought down to Rs.1,500/-. 19. P.W.7, Smt. Indrani Mujumdar was the Deputy Commissioner of Customs and Central Excise, the Authority, empowered to sanction prosecution. She proved her sanction order at Exh. 32 which unfortunately does not bear any date. She, however, stated that note sheet would show date on which she sanctioned prosecution. The absence of date on the sanction order does not reduce its value. 20. On the question of sanction reliance was placed on judgment of this Court in Central Bureau of Investigating -vs- Anil Jagirdar and anr CDJ 2008 BHC 556. In that case a judgment of acquittal rendered by the Special Judge was sought to be assailed on the ground that Special Judge had arrived at finding not borne out from the evidence on record. In that case there was no prior sanction as well. This Court, therefore, refused to upset the acquittal of accused. Learned Counsel, for the appellant submitted that the sanction in this case accorded by P.W.7 Smt. Mujumdar is identically worded to the draft submitted by the prosecution and therefore, sanction 11 appeal 101 of 97.sxw may be held to be bad. Sanction order which is similarly worded to draft suggested does not warrant any inference that there was non application of mind, since the draft submitted may be found to be perfect and the authority may not find it necessary to alter it just for sake of showing application of mind. 21. Learned counsel for the appellant submitted that merely finding tainted money with the appellant was not enough to prove charge of accepting bribe. For this purpose, he relied on the judgment of High Court of Madras, in Innasimuthu & Anr -vs- State , reported in CDJ Law Journal, 2010 MHC 412, where, in para 12, the Court observed that recovery of money in the absence of any other material showing that demand was made would not establish the prosecution case. There can be no doubt that mere payment without demand may not be sufficient to prove the offence. However, in this case it is not that there is no demand from the appellant. Appellant’s question as to what about him, was an implied demand and therefore, it cannot be said that there was absolutely no demand. 22. Learned counsel for the appellant next submitted that big fish like Sabnis have been left out and even though the learned Judge has concluded that it was Kazi, who had in fact made demands, the learned Judge convicted the appellant for receiving money. It is not that the appellant claims that he received money on behalf of Sabnis or Kazi. On the day of trap 12 appeal 101 of 97.sxw it was not Sabnis or Kazi, who had asked Vishwanath to pay money. It was the appellant, who asked the complainant as to what about him, and when the complainant asked as to whether he should pay him then and there, answered in the affirmative. Therefore, whether the prosecution was justified in letting off Sabnis is not relevant. As far as Kazi is concerned, though he may have demanded money, it cannot be said that the learned Judge erred in acquitting Kazi because the evidence in that regard was only in the form of statement of complainant Vishvanath, without any corroboration, and further, on the incidental day, Kazi had neither repeated the demand nor had accepted any money. Therefore, it cannot be said that because Sabnis was let off or Kazi was acquitted, the appellant’s conviction cannot be sustained. 23. Learned counsel for the appellant submitted that the statement under Section 313 of Criminal procedure Code was inaccurate, depriving the appellant of having opportunity to explain the circumstance appearing against him in the evidence. The objection is to the question No.5, which reads as under :. “Q.5 Kanji Prithiviraj P.W.6 who happens to be a neighbour of the complainant has deposed that he was also present in your office when the CBI Officer, laid the trap and that money paid to you by Mr. Kotian which was recovered by the CBI Officer,What do you have to say?” 13 appeal 101 of 97.sxw Learned counsel for the appellant may be right in submitting that the evidence of P.W.6 Kanji Prithiviraj is not correctly reflected in question put. Kanji had stated that he knew nothing about the trap and had also not stated that P.W.1 Vishvanath Kotian had paid money to the appellant because he stated that he was sitting with his back to the appellant. 24. Learned counsel for the appellant relied on the judgment of Apex Court, reported in (2009), Supreme Court Cases, 769, Inspector of Customs Akhnoor, Jammu andKashmir -vs- Yashpal and anr about infirmities in statements under section 313 of Criminal Procedure Code. It has been observed that when incriminating material was not brought to the notice of accused while examining him under section 313 of of Criminal Procedure Code, the acquittal recorded by High Court could not be held to suffer from any infirmity. The case at hand is not about not putting up incriminatory circumstances to the appellant but of a piece of evidence being incorrectly put to the appellant. All that could be said is that Kanji Prithiviraj had not stated about Vishvanath paying bribe to the appellant and yet the learned Judge had put such a question to the appellant. This could have been used to assail judgment if the learned Judge had misread evidence of P.W.6 Kanji Prithviraj in the judgment. The judgment does not show that evidence of Kanji Prithiviraj formed the foundation of the conclusions drawn 14 appeal 101 of 97.sxw or was used to support the conclusion drawn by the learned Judge. Therefore, this inaccuracy in the statement under section 313 would not help the appellant. 25. Reliance on the judgment of High Court of Madras in State by Inspector of Police Vigilance & Anti Corruption - vs- Magalingam, also on the question of putting incriminating material in the statement under Section 313 of Criminal Procedure Code is therefore, unhelpful. 26. It cannot be thus held that the conviction of the appellant was wrong or unjustified. 27. Learned counsel for the appellant placed reliance on the judgment of Supreme Court in G. V. Nanjundiah -vs- State (Delhi Administration) CDJ 1987 SC 660, decision wherein is based purely on appreciation of evidence about demand. What constitutes sufficient evidence of demand would depend on evidence tendered in each case. Hence the judgment is unhelpful in deciding case at hand. Even on reappreciation of entire evidence in the light of arguments advanced, it cannot be said that there is any doubt about appellant having participated in making first demand, in unabashedly asking the complainant to pay him and then receiving the bribe, conviction of the appellant recorded by the learned Special Judge therefore, does not call for any interference. 28. On the question of sentence the learned counsel for the appellant submitted that the appellant may not be now sent 15 appeal 101 of 97.sxw to jail after 14 years of his conviction and 24 years after the incident. He relied on the judgment In B.G.GOSWAMI Versus DELHI ADMINISTRATION, reported at (1974) 3 Supreme Court Cases 85, where the Court observed as under :- “10. As already observed, the appellant's conviction under Section 161, I.P.C. was rightly upheld by the High Court and there is no cogent ground made out for our interference with that conviction. The sentence of imprisonment imposed by the High Court for both these offences is one year and this sentence is to run concurrently. The only question which arises is that under Section 5(1)(d), read with Section 5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year and there must also be imposition of fine. The sentence of imprisonment can be for a lessor period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial 16 appeal 101 of 97.sxw mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to Jail now after seven years of the agony and 17 appeal 101 of 97.sxw harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs.200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same.” 29. Though the incident took place about 24 years ago and appellant had suffered conviction about 14 years back. After that the appellant had lost all his service benefits. Learned APP submitted that in offences of this type leniency could be misplaced. However, considering the fact that the appellant has been living under the shadow of conviction for the last 14 years, it would be appropriate to reduce substantial sentence to R.I.