1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 12 OF 2010 Chaitanya Prakash Audichya, presently posted at Pune and permanently residing at District Jhalawar, Rajasthan. ... Appellant versus The Central Bureau of Investigation, Anti Corruption Bureau, Opp. Doordarshan, Altinho, Panaji, Goa. ... Respondent Shri P. U. Mirajkar, Advocate for the Appellant. Shri J. Vaz, Special Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 6TH DECEMBER, 2010. JUDGMENT This appeal is filed by the accused who at the relevant time was working as Assistant Labour Commissioner (Central) at Vasco-da- Gama against Judgment dated 22-1-2010 in Special Case No.6 of 2009 by which the accused has been convicted and sentenced under Section 13(2) r/w Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 for having demanded and accepted a sum of Rs.10,000/- on 2 30-5-2003 from Bhandari Chandrasekhar, Proprietor of M/s J.C.S. Associates, Fatorda, Goa, for the purpose of issuance of licences which he had applied for on 7-5-2003 under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Rules framed thereunder. 2. The complaint against the accused was filed by the said Shri Bhandari Chandrasekhar who was examined as PW1 and the raid was conducted by PW6/CBI Police Inspector Shri Bhalchandra M. Chonkar. The raid was witnessed by Ranjeet Thakur and Shri Karapurkar, both Officers of Bank of India, Panaji, the former having been examined as PW2. The prosecution has examined in all eight witnesses, the last being PW8/CBI Dy. S.P. Shri F. B. Karna who had continued with and completed the investigations. 3. The accused had examined his successor Shri Karamchandra as DW1 and had examined himself as DW2, and it was the case of the accused, as can be seen from his evidence, that on 30-5-2003 he had gone to Saleli in Sattari Taluka for inspection and had returned home at 22.30 hours and was preparing to retire to bed when he heard the door 3 bell ring and his wife answered the call. There were two unexpected visitors and he was surprised to see them. One of whom was PW1/Chandrashekar Bhandari who told him that he had filed two applications in his Office which were pending for processing and the accused told him that he should follow it up in the Office. PW1/Bhandari then made a request for some cold water and he was about to tell his wife to bring a glass of water when PW1/Bhandari pushed something in his shirt pocket and in the meantime the stranger who was along with him went out and brought some more people. He put his hand in his pocket to find out what was pushed inside by PW1/Bhandari when someone who had entered his house held his hand and he asked the person who held his hand their identity when it was disclosed that they were from the CBI; He tried to explain to them but they were not ready to listen to him; Someone from the group removed something from his pocket and when he saw he found it was cash. He was placed under arrest. He was released on bail on 4-6-2003, and then he wrote a letter to the Secretary, Ministry of Labour dated 10-6-2003. 4. By the said letter, the accused, inter alia, informed the Secretary, Ministry of Labour, Government of India, New Delhi, that he 4 was not aware how much money they had put in his pocket and the CBI Officers were not ready to listen to his request and they pressurized him to take the money with his own hand and thereafter they searched his entire house and seized some money which was to be paid to the builder regarding his Dona Paula house which he had recently purchased. There is no dispute that there is another case pending against the accused for having disproportionate assets in connection with the said money found in the house. 5. The learned Special Judge after considering the evidence produced by the prosecution came to the conclusion that the CBI had levelled and proved the charges against the accused of taking gratification other than legal remuneration in respect of an official act under direct evidence of PW1/Bhandari and PW2/Thakur and corroborating evidence of PW3/Sadanand, PW6/P.I.Chonkar, PW8/ Dy.S.P. Karna and DW1/Karamchandra and thus the prosecution had established that the accused being a public servant was found taking gratification other than legal remuneration in respect of his official act. The learned Special Judge also held that the evidence of PW4/Sehgal showed that the sanction was properly accorded by application of mind. 5 The learned Special Judge further held that the hand wash of the accused had tested positive for phenolphthalein thus negating the plea that the currency notes were thrust in his T shirt pocket by PW1/Bhandari. The learned Special Judge held that there was a presumption in terms of Section 20 of the P.C. Act, 1988 which presumption was unrebutted in the face of the prosecution case proved against him beyond reasonable doubt inasmuch as the accused had not given any explanation for Rs.10,000/- found on his person which was not and could not have been legal remuneration accepted by the accused in discharge of his official act of issuing a licence or a certificate to the complainant PW1/Bhandari, and thus the prosecution had established that the accused as a public servant had taken gratification other than legal remuneration, and, therefore proceeded to convict and sentence the accused as aforesaid. 6. The main case of the prosecution is essentially based on the evidence of PW1/Bhandari, the complainant, PW2/Thakur, the panch witness and PW6/CBI, P.I. Chonkar who recorded the complaint of the said PW1/Shri Bhandari and carried out the raid as per the procedure prescribed and seized the amount paid by the complainant to the accused from the T shirt pocket of the accused. The defence plea of the accused 6 has got to be tested in the light of the evidence of the complainant PW1/ Bhandari and the panch witness, PW2/Thakur whose evidence, the accused was unable to dent. PW2/Thakur is an independent panch witness and who in fact falsifies the theory put forward by the accused that any amount was forcefully put in his pocket, or that the accused was asked to remove the same. 7. PW1/Bhandari in his evidence before the Court stated that he was the Proprietor of M/s. J.C.S. Associates and was carrying on business in that name and he knew the accused, as Assistant Labour Commissioner. He had given details about the work orders received by him for the approach road to the VIP Guest-House for Rs.15,00,000/- and for vehicle parking shed for Rs.56,00,000/-. He had produced the acceptance letters. According to him, he was required to obtain labour registration licences from the office of the accused and he had applied for licences on 7-5-2003 in respect of both the works which were produced by him at Exhs. 31 and 32 but he had started the work of construction in the last week of April, 2003, and for that he had received a letter from O&NGC (Oil and National Gas Corporation Ltd.). He had stated that the applications were received in the office of the accused of 7 Assistant Labour Commissioner on 13-5-2003, and he was told that the applications would be processed within 10 days and since they were not processed he approached the accused. According to him, the accused visited the site on 29-5-2003, and the accused inspected the documents and he reminded the accused about the issuance of the licences. According to him, the accused camped on that day in the Rest House of O&NGC which is situated within the campus and the accused told him to meet him at about 6.00 p.m. The accused prepared inspection notes, a copy of which he produced at Exh.33. He met the accused at about 6.00 p.m. in the room of the Rest House and the accused asked him as to what he should do about the licences and he replied to the accused that it would be better in case they were issued at the earliest so that he could submit the same to the Department. The accused then told him that he should pay Rs.30,000/-, and upon hearing that he was shocked, whereupon he told the accused that he was doing small works and his records were in order and the application was in proper form whereupon the accused told him that he should pay him at least Rs.10,000/- on the next day and the balance of Rs.20,000/- after the licences are issued, and thereafter he came out of the Rest House and then he thought whether he should pay the amount to the accused or whether he should file a 8 complaint against the accused, and on the next day, i.e. on 30-5-2003 he approached the Office of the CBI and gave a written complaint at about 3.30 p.m. and after he narrated about the incident and at about 4.30 p.m. two officers, namely PW2/Ranjit Thakur and one Karapurkar, both officials of Bank of India were brought and introduced to him. His complaint was shown to the said two witnesses and in their presence he narrated the sequence of events which had taken place and they were explained by the CBI officials as to how they were going to proceed with the complaint. At the request of the CBI officials, he handed over Rs.10,000/- i.e. three notes of Rs.1000/- each and fourteen notes of Rs.500/- each. The CBI officials noted the numbers of the notes and gave a demonstration as regards the use of phenolphthalein powder with sodium carbonate in water. His personal search was taken and the extra amount of Rs.575/- which he had was kept in the CBI custody and after phenolphthalein powder was applied to the said notes of Rs.10,000/-, one of the Head Constables of CBI put the amount of Rs.10,000/- in his shirt pocket on the right side, and he was instructed that he should not touch the said notes till such time the accused accepted the said bribe amount and he was told that PW2/Thakur would be accompanying him at the time of giving the accused money on demand. The said PW2/Thakur was 9 also given necessary instructions that he should remain with him to see what was happening and he was further instructed to give a signal to the raiding party by wiping his face with handkerchief by coming out from the residence of the accused. PW1/Bhandari further stated that at about 5.30 p.m. they started from the Office of the CBI to go to the house of the accused to pay the bribe amount to the accused. He further stated that the accused had asked him to come to his house after office hours on 30-5-2003 along with the bribe amount. Around 6.30 p.m. they reached Vasco. The accused was residing at Government Quarters. He stated that he was not knowing the residence of the accused. According to him, they went first to the office of the accused and one of the clerks of the accused was in the office who gave the residential address of the accused, and, thereafter he and PW2/Thakur went to the house of the accused while the other members of the team stayed at some distance from the house. He stated that the residence of the accused was on the ground floor. He knocked at the door of the house. One lady opened the door. He introduced himself. The said lady told him that she was the wife of the accused. She told him that the accused was not available and she was told by the accused that in case anybody came they should be asked to wait for some time. The wife of the accused told them that the accused 10 would come at about 10.00 p.m. and they told the wife of the accused that they would come after 10.00 p.m. and left the place and joined the CBI team and were waiting till about 10.00 p.m. or so. He and PW2/Thakur went to the residence of the accused and knocked at the door. The accused opened the door and called them in. The accused asked PW1/Bhandari about PW2/Thakur and he told him that he was his newly appointed Junior Engineer. Thereafter, they sat in the house of the accused whereupon the accused asked him whether he had brought Rs.10,000/-, and thereafter handed the amount of Rs.10,000/- which the accused put in his shirt pocket and told him that he would issue the licences on Monday i.e. 2-6-2003. The accused did not count the money. PW2/Thakur who was sitting next to him then gave an excuse of some abdominal problem and went out of the house and within minutes, the CBI team came inside the house of the accused along with PW2/Thakur and disclosed about the complaint filed and one of the officers caught hold of the wrist of the right hand of the accused and the accused was asked to co-operate with the CBI and on asking by the CBI about the bribe accepted by him the accused said that he had kept the money in his T shirt pocket. According to him, the accused had accepted the amount with his right hand. A solution was prepared in a glass. The accused was 11 asked to dip his fingers in the said solution which the accused did and the solution turned into pink colour. The accused was asked to dip his fingers of left hand in another solution but there was no re-action. The said notes of Rs.10,000/- were then verified. The accused was asked to remove his T shirt which the accused did and the number of notes along with its denominations tallied with the notes which were handed over by him to the CBI to be given to the accused. The portion of the T shirt pocket of the accused in which the notes were kept by the accused were also dipped in the solution and it also turned pink, and all the solutions were sealed by the CBI. A personal search of the accused was taken and the T shirt of the accused was packed and sealed and a panchanama was prepared. 8. The version given by PW1/Bhandari is corroborated by PW2/Thakur in all particulars, except for one discrepancy made by PW1/ Bhandari, to which reference will be made a little later, and as already stated by PW6/P.I.Chonkar. In fact, the defence has not been able to make any dent in the evidence of PW2/Thakur or for that matter in the version given by PW1/Bhandari. 12 9. Shri P. U. Mirajkar, learned Counsel appearing on behalf of the accused has made various submissions to suggest that the version given by PW1/Bhandari is not truthful. According to the learned Counsel, this was not an ordinary raid but an unusual case of ambush and chase and this smells something unusual. The submission made by learned Counsel, at first flush appears to be catchy, but without any merit. The accused had approached PW1/Bhandari with a demand for Rs.30,000/-, Rs.10,000/- to be paid on the next day. This was on the 29th May, 2003, and ordinarily he(PW1) would take some time to think over whether to oblige the accused or take recourse to law and as a result, he went to the office of the CBI at about 3.30 p.m. on the next day (30-5-2003) as stated by him. Then, time was taken to complete the formalities and by the time the raiding party left Panaji it was about 5.15 p.m. or so as stated by PW2/Thakur and by the time they reached Vasco- da-Gama it was about 6.30 p.m. and having gone there the raiding party was not expected to return back but wait for the arrival of the accused who was not found at home, and, therefore in my view, there is nothing unusual in the conduct of the raiding party for having gone to the house of the accused and having waited there till his arrival, till about 13 10.00 p.m. since that was the expected time for the arrival of the accused, as informed by his wife. 10. Next, learned Counsel submits that PW1/Bhandari did not make any statement earlier in his complaint that the accused had called him to his house after office hours, and this omission is significant. In this context, learned Counsel has placed reliance on Abdul Rashid Ansari v. State of U.P.(1993(2) Crimes 261). That was a case where trap was organized at 3.00 p.m. on 24-7-1981 in a situation where there was no certainty of the availability of the accused in his office on the said date and time. That is not relevant here because normally a government servant is expected to be found at home after office hours and not only that the accused had even kept a message with his wife to say that if anybody came to see him they should be asked to wait for some time. The submission that PW1/Bhandari omitted in mentioning in the complaint that he was called at his house and this is a significant omission, in my view cannot be accepted. In my view such an omission is not only trivial but insignificant and on that count the entire story of PW1/Bhandari cannot be disbelieved which is otherwise consistent and convincing. Next, learned Counsel submits that the story that accused 14 demanded Rs.30,000/- cannot be believed in a case where PW1/Bhandari if prosecuted would be liable to pay a fine of Rs.1000/-. Learned Counsel has placed reliance on State by Inspector Vigilance and Anti Corruption v. K. M. Ravi(2002(3) Crimes 291). That was a case where an amount of Rs.35,000/- was recovered from beneath the pillow from the bed of the accused. The money was meant to cover deficient stamp on documents which were required to be registered. Additional stamp duty on the said documents worked out to Rs.35,272/-. The pillow cover and the bed sheets were not seized and were not treated for phenolphthalein test. The prosecution had given no explanation that against stamp duty of Rs.35,272/- why PW2 (in that case) would pay an amount of Rs.35,000/-. In my view, this case is hardly of any assistance to the case of the accused. Firstly, the case at hand stands on much sure foundation and moreover PW1/Bhandari as a contractor would require licences from time to time, and for that he had to keep the accused in good humour so that his work was promptly done. Moreover, the fine alone would not matter. When a case is filed, there is other expenditure to be incurred and time to be wasted and for that reason many a person now a days prefer to settle the matter by bribe money rather than go strictly in accordance with law. 15 11. Shri J. Vaz, learned Public Prosecutor on this aspect of the case has placed reliance on the case of State of Maharashtra v. Ishwar Piraji Kalpatri and others((1996) 1 SCC 542) wherein the Apex Court has observed that if the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. 12. Learned Special Public Prosecutor has also placed reliance on B. Hanumantha Rao v. State of A.P.(1993 Supp (1) SCC 323) wherein the Hon'ble Supreme Court has held that when demand and acceptance of bribe is established beyond doubt then the alleged enmity between the accused and the person paying the bribe, even if true, is held immaterial. 13. PW6/P.I. Chonkar has stated that on entering the flat of the accused, the accused was found sitting on a sofa and PW1/Bhandari 16 sitting on a separate sofa, and the accused was asked whether he has accepted a bribe of Rs.10,000/- from PW1/Bhandari and the accused on hearing this question became nervous and admitted that he had accepted the said amount from PW1/Bhandari, and when he was asked where he had kept the amount he disclosed that it was in his T shirt pocket. The solution of sodium carbonate was prepared in two separate clean glass tumblers and the accused was asked to wash his hands, first right which turned pink then his left hand which did not turn to pink and both the said solutions were transferred in separate bottles and were sealed. This fact has been corroborated by none other than PW2/Thakur who is an independent witness. This was before notes were taken out from the pocket. PW1/Bhandari in his cross-examination stated that it is the accused who had handed over the said amount to CBI Officers. Learned Counsel submits that this explains the hand wash of the accused with sodium carbonate becoming pink. However, I am not inclined to give much importance to the statement of PW1/Bhandari which must have been made by him under the weight of cross-examination. The panchanama, a written record, the evidence of PW2/Thakur as well as PW6/P.I. Chonkar all indicate that the money from the pocket of the accused was removed by the other panch witness Shri Karapurkar and in 17 fact PW2/Thakur, who is a wholly reliable witness, has stated that PW1/ Bhandari had handled the currency notes only once when he handed over the same to the accused, and the fact that the hand wash taken of the right hand of the accused became pink is a further indication that the accused had accepted the said amount from PW1/Bhandari. PW5/Bhansal confirms this position. As observed by the Apex Court in B. Hanumantha Rao v. State of A.P.(supra) the fact that on washing the hands of the accused by a solution of sodium carbonate the water turned pink leaves no matter of doubt that the amount was touched and handled by the accused, and, therefore much importance cannot be given to the said statement of PW1/Bhandari that it is the accused who had removed the notes from his pocket. In fact, in answer to Question No.61, the accused has accepted that Rs.10,000/- were found from his personal search. 14. The prosecution also examined PW3/Sadanand Naik, an U.D.C. working in the Office of the accused, Assistant Labour Commissioner. According to him, he was required to process the applications received, etc. He confirmed having received the applications filed by PW1/Bhandari in the name of M/s. J.C.S. Associates under the 18 Buildings and Other Construction (Work Regulation of Employment and Conditions of Services) Act, 1996. He identified the said applications- Exhs.31 and 32 which according to him were registered in the Office on 13-5-2003, and he had placed the said applications, as per the procedure followed by them before the Assistant Labour Commissioner and the accused had initialled the same without putting any remark and he had approached the accused and asked him what he was required to do to the said applications since there were no remarks put, and he was told to keep the said applications pending. He stated that if the applications are filed in their Office and are found in order the applications are cleared within two or three days. He also stated that similar applications filed by one M/s. Hydro Air Tactronics P. C. Pvt. Ltd. on 23-5-2003 were disposed off by the accused on the same day. According to him, the said two applications filed by PW1/Bhandari were in order. 15. The accused has admitted in terms in answer to Question Nos.130 and 131 that the applications were sent by him without putting any remarks but only with initials. Accused has also admitted that in case the