1 apeal 170of 1995 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.170 OF 1995 Arvind Shrinivas Kulkarni Veterinary Doctor residing at 31, Kalyan Dham, Adharwadi Road, Kalyan (W), District: Thane .. Appellant -versus The State of Maharashtra .. Respondent. Mr. S. R. Chitnis, Senior Counsel with Mr. M.S.Mohite, with Mr. M.R. Katikar, for the appellant. Mrs. A. A. Mane, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 21st September, 2011 Oral Judgment 1. This appeal is directed against the judgment of learned Special Judge, Solapur, convicting the appellant of offences under Sections 7 and 13 (1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and inflicting sentence of R.I. for 2 years with fine of Rs.2,000/- or in default R.I. for six months and R.I. for three years with fine of Rs. 3,000/- or in default R.I. for nine months respectively, on the 2 apeal 170of 1995 two counts. 2. Facts which are material for deciding this appeal are as under:- The appellant was working as Live Stock Development Officer, in the Veterinary Dispensary at Kurduwadi, District: Solapur at the relevant time. The complainant had purchased two jersey cows by taking loan from Bank of India, Kurduwadi branch in the name of his wife. The complainant was serving in the railway. The cows had been insured with an Insurance Company, through an Agent, one Mr. Parkhe. One of the two cows died sometime in February, 1986. The complainant was at that time admitted in Railway Hospital. He took discharge for some time and informed the bank about death of cow. Insurance Agent Parkhe and appellant’s predecessor Dr. Patil, had already gone to the complainant’s house. He requested Dr. Patil to issue certificate about death of cow, when Dr. Patil stated that he had seen that the cow was dead and he would issue certificate on the next day from the Veterinary Dispensary. He did not conduct any postmortem of the cow. The complainant caused disposal of the dead body of the cow and after two days when he was discharged from the hospital, again went and saw agent Parkhe, who told him to get a certificate from Police Patil, panchnama and postmortem certificate of the cow. The complainant went to Dr. Patil and asked for requisite 3 apeal 170of 1995 certificate. Dr. Patil, demanded a sum of Rs.3,000/- for this certificate. Complainant expressed his inability to Dr. Patil, but Dr. Patil was adamant and stated that unless complainant pays Rs.3,000/- he would not issue certificate. Thereafter Dr. Patil was transferred to Kolhapur and the appellant succeeded Dr. Patil. 3. Upon complainant’s demanding certificate even the appellant demanded Rs.3,000/- and eventually on 4th June, 1987, brought down the demand to Rs.1,200/- and repeated the demand on 7th June, 1987. The appellant is alleged to have told the complainant that appellant had been transferred to Pune and his successor would take charge on 10th of that month and therefore asked the complainant to pay amount before that date. The complainant, therefore, approached the office of Anti Corruption Bureau on 8th June, 1987. His complaint was reduced into writing. After he collected requisite amount a trap was arranged by calling panchas on 10th June, 1987. An elaborate pre-trap panchnama was drawn up. Thereafter the complainant accompanied by one of two panchas Martand Kulkarni, who was examined as P.W.2, were asked to approach the appellant with the bribe amount. Accordingly the complainant who was examined as P.W.9, accompanied by shadow witness P.W.2 Martand Kulkarni went to the appellant’s cabin and on appellant’s demanding the 4 apeal 170of 1995 amount, the complainant took out bribe amount, which had been smeared with anthracene powder, handed it over to the appellant which the appellant accepted and kept it in the drawer of his table. On the complainant’s giving pre- determined signal, the raiding party swooped. The other panch Mukund Kakade who was examined as P.W.10, found the notes were to be the same which had been kept with the complainant. The notes and hands of appellant were examined in ultra violet light. The notes, the hands of the appellant and the drawer also glowed in ultra violet light. The bribe money and other relevant material was seized and an elaborate panchnama of the trap was drawn. The appellant was arrested and raiding officer P.W.11-Police Inspector - Madhukar Kadam registered an offence. P.W.12 - Sub Divisional Officer, Vasant Kulkarni, conducted part of the investigation, which was taken over by Police Inspector - Shaikh. After completion of the investigation, necessary papers were sent to the competent authority for according sanction for prosecution. P.W.3 Ratnakar Naik who was serving as Deputy Secretary in Agricultural and Animal Husbandry Dairy Development and Fishery Department, stated that after approval of Government for prosecution of the appellant, he issued sanction order vide Exh. 47. Thereupon a chargesheet was sent to the Court of Special Judge at Solapur. 5 apeal 170of 1995 4. The learned Special Judge, charged the appellant of offence under Sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Since the appellant pleaded not guilty, he was put on trial at which, prosecution examined, as many as 13 witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned Special Judge convicted and sentenced the appellant as afore-mentioned. Aggrieved thereby the appellant is before this Court. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel I have gone through the evidence on record. P.W.1, Kaveribai is complainant’s wife, who was in fact the owner of the cows and had taken loan from the bank. Her evidence is of no use to come to any conclusion about the complicity of the appellant. P.W.6 Narayan Thorat, P.W.7- Jayant Waghmare, P.W.8-Dattu Meher, speak about the death of the cow, drawing up the panchnama and other documents relating to the death of the cow. Since the death of the cow itself is not subject matter of this trial, evidence of all these witnesses need not be scrutinized at length. 6 apeal 170of 1995 6. P.W.4 - Head Constable - Kashinath Kurnawal and P.W.5 - Rama Bagal, stated about advancing sums of Rs.300/- each to the complainant on 9.6.1987 to enable the complainant to make up bribe amount. Their evidence is also not of much importance for considering the complicity of the appellant. As already adverted P.W.3 Ramakant Naik, Deputy Secretary had accorded sanction for prosecution of the appellant, for the offence punishable under Section 161 of the Indian Penal Code and Sections 5(1)(d) read with section 5 (2) of the Prevention of Corruption Act, 1947 corresponding to Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. P.W.2 Martand Kulkarni was the first panch, who had accompanied P.W.9 complainant-Ashok Koli when the complainant talked of giving bribe. P.W.10 Mukund Kakade, as already adverted, was the second panch. P.W.11, Madhukar Kadam was the raiding officer. P.W.12, Shri. Vasant Kulkarni conducted investigation in part. P.W.13, Head Constable -Rangnath Salunke speaks of investigation carried out by Shri. Wadekar before Shri. Vasant Kulkarni came on the scene since Shri. Wadekar, had expired and was not available to depose before the Court. 7. Learned counsel for the appellant first submitted that since the offence had taken place in June, 1987, learned 7 apeal 170of 1995 trial Judge erred in charging and convicting the appellant for offence punishable under Sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. For this purpose, he relied upon the judgment of Supreme Court, in Ajagan M. Sheshadri -vs- State of Tamil Nadu, reported at 2002 Cri. L. J. 2982 (Supreme Court). In that case, the trial Judge in fact rightly charged the accused for offence under Section 5(1)(d), (e) read with section 5(2) of the Prevention of Corruption Act, 1947 and upon trial had acquitted the accused, since the allegations pertained to the period from 11.5.1977 to 31.3.1984. F.I.R. itself was filed on 18.6.1986 and the trial was concluded on 9.7.1990. The High Court, on an appeal by the State, held that since 1988 Act had come into force from 9.9.1988 and the 1947 Act, had been repealed, the accused could not have been charged and tried under Section 5 of the Prevention of Corruption Act, 1947. The High Court, then proceeded to hold accused guilty of offence under Section 13(1) (e) read with section 13(2) of the Prevention of Corruption Act, 1988. Accused questioned his conviction by the High Court before the Supreme Court. The Supreme Court held that the High Court had fallen in error by treating the case as one under Section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988. The Court was constrained to observe that the High Court was dealing with an appeal against acquittal and was required to 8 apeal 170of 1995 deal with various grounds on which judgment of acquittal was passed and to dispel those grounds. The Supreme Court held that the salutary principles while dealing with appeal against acquittal had been overlooked by the High Court and since the appreciation of evidence by the trial Court did not suffer from any flaw, the order of acquittal should not have been set aside. The Supreme Court found that the view taken by the trial Judge was reasonable and therefore, allowed the appeal reversing the judgment of the High Court. Learned counsel for the appellant sought to deduce from this judgment ratio that the appellant could not have been tried for offence under Section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Since offence had taken place before the new Act came into force. He submitted that this is serious discrepancy in the charge which would vitiate the trial as well as conviction. 8. I have carefully considered this contention, first it has to be noted that except for one aspect about explanation to be furnished by accused, provisions of section 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, correspond to sections 7, 13 (1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Therefore, merely because wrong section or Act was quoted in the charge, trial would not be 9 apeal 170of 1995 vitiated since all the details which are material for enabling the accused to know as to what is the charge against him were contained in the charge. Section 464 of the Code of Criminal procedure lays down that no finding or sentence, by a Court of competent jurisdiction shall be deemed to be invalid merely on the ground that no charge was framed, or on the ground of any error, omission, or irregularity in the charge, unless in the opinion of the appellate Court, failure of justice has in fact occasioned. In my view mere reference to Sections from the 1988 Act is not something which could be held to have led to any failure of justice. 9. Learned counsel for the appellant next submitted that the sanction itself was erroneous since the sanctioning authority referred to the provisions of the new Act, when those provisions were not applicable. He submitted that this exhibits non application of mind. The sanction order at Exh. 47 does not show that the authority had accorded sanction to prosecute the appellant under the provisions of new Act. The order categorically mentions that sanction had been accorded for prosecution for offence under Section 161 of the Indian Penal Code and sections 5(1)(d) read with 5 (2) of the Prevention of Corruption Act, 1947. In view of this even on this ground the prosecution or conviction of the appellant cannot be assailed. 10 apeal 170of 1995 10. The learned counsel for the appellant next submitted that the evidence about receipt of bribe by the appellant was itself doubtful. He pointed out that notes were in fact not found on the person of appellant, but were in the drawer of the table of the appellant. He submitted that P.W.2 Martand Kulkarni a shadow witness had stated in examination in chief itself that, “Complainant took out notes from the pocket and gave those to that person. Thereafter those notes were kept in the drawer of the steel table which was in front of that person, who was sitting in the chair. I do not remember who kept those notes in the drawer. I again say that I do not know who kept those notes in the drawer”. 11. Learned counsel for the appellant pointed out that thereafter again in para 4 of the examination in chief which was resumed on the next day, witness turned round, stating that after accepting notes from the complainant, the person sitting in the chair kept those notes in the drawer of the table. In cross examination the witness stated that it did so happen that the complainant told the raiding party, when it reached after receiving signal, that the notes were in the drawer of the table. Witness stated that it was true that when the complainant asked the appellant about certificate and the appellant told the complainant that neither did he carry out 11 apeal 170of 1995 postmortem of the cow, nor he saw the dead cow. The witness also stated that it was true that Dr. Kulkarni told the complainant that hence he could not do anything in the matter. Again the witness was permitted to be cross examined by the APP and again he stated in cross examination by APP that the appellant accepted the amount from the complainant and kept it in the drawer of the table. 12. P.W.-9, Ashok Koli - the complainant stated that the appellant demanded money, accepted it by his right hand and then kept it in the drawer. He stated that after he gave signal, raiding party entered and he was asked to go out. Accordingly he waited outside. He does not state that he told the raiding party that the amount was in the drawer. Learned counsel for the appellant submitted that vacillation by P.W.2 Kulkarni on the question as to who kept notes in the drawer would have to be seen in the light of the fact that after raiding party received signal, hands of the appellant were not first examined in ultra violet light. P.W.-2, Kulkarni stated that after the appellant showed amount in the drawer, the appellant took out the notes from the drawer and kept them on the table. Thereafter the hands of the appellant were examined in ultra violet light. Therefore, leaned counsel submitted that the possibility that the notes were kept in the drawer by the complainant and then the appellant’s hands got smeared 12 apeal 170of 1995 when he was made to take out the notes has to be borne in mind. P.W.10, Mukund Kakade, the second panch also states in examination in chief itself that the Anti Corruption Officer asked the appellant to produce the amount taken from the complainant and then the appellant told that the amount was in the drawer. In cross examination, the witness admitted that Police Inspector Kadam had asked the appellant to open the drawer and take out the notes, and after the appellant had taken out notes and kept them on the table, his hands were examined in ultra violet light. This reinforces the possibility that the appellant’s hands got smeared when he was asked to take out tainted notes which were kept in the drawer. Therefore, since panch P.W.-2 Martand Kulkarni was not sure as to who had put the notes in the drawer, leaving the possibility of complainant putting notes in the drawer open, and both the panchas state that the appellant was asked to take out tainted notes from the drawer, the defence of the appellant that he had not accepted any bribe amount and that it was kept in the drawer and that his hands got tainted while taking amount out at the instance of raiding officer, would have to be accepted. 13. This is not all, learned counsel for the appellant pointed out that in the present case it is not complainant's case that the appellant had carried postmortem on the dead 13 apeal 170of 1995 cow. It was supposed to have been carried out by Dr. Patil, who had initially made demand for sum of Rs.3,000/- from the complainant. Dr. Patil had already been transferred. Learned counsel for the appellant also pointed out from Exhibit 25 that the complainant had filed an application with Bank of India, Kurduwadi, on 12.2.1986 stating that the postmortem had been done by Dr. Patil, therefore, there was no question of complainant seeking a certificate from the appellant. P.W.2 Martand Kulkarni had stated in cross examination that it was true that the complainant asked the appellant about the certificate, the appellant told the complainant that neither he carried out postmortem of the cow nor he saw dead cow and therefore, he could not do anything in the matter. If this is so, so it is not clear as to where would be the question of complainant’s giving any money to the appellant and his accepting that money in the manner deposed to by the P.W.9 Ashok Koli to the effect that when he met the appellant alongwith panch, the appellant laughed and asked him whether he had brought money and that he replied in the affirmative while laughing. Thus, the evidence about talk between appellant and the complainant given by P.W.2 Martand Kulkarni and complainant is discrepant. If Martand Kulkarni’s version has to be believed the appellant would have no occasion to demand money. Considering all this, learned trial Judge should have seen that the possibility of appellant 14 apeal 170of 1995 not having made any demand or accepted bribe amount of Rs. 1200/- from the complainant very much existed, of which the benefit should have gone to the appellant. 14. In view of this the appeal is allowed. The conviction for offence punishable under Section 7 of Prevention of Corruption Act, and sentence to suffer R.I. for two years with fine of Rs.2,000/- or in default R.I. for six months; and also conviction for offence under Section 13(1) (d) read with sections 13(2), and sentence to suffer R. I. for three years with fine of Rs.3,000/- or in default R.I. for nine months, imposed on the appellant by the learned Special Judge, Solapur, is set aside and the appellant is acquitted of all the offences. His bail bond stands cancelled. (R. C. CHAVAN, J.)