1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 227/2001 Kalyan s/o Rohidas Gade, Age : 43 years, Occu. At present nil, R/o Dhanora Nagar, Palwan Chowk, Sant Tukaram Nagar, Beed. ...Appellant Versus The State of Maharashtra, through Anti Corruption Bureau, Beed. ...Respondent Shri R.N. Dhorde, Advocate for appellant. Shri S.G. Nandedkar, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J Date : 20th October, 2010. ORAL JUDGMENT 1 This appeal is challenging the judgment and order passed by the learned Special Judge, Beed in Special Case No. 131/1993 dated 08/05/2001. The impugned judgment held the appellant guilty of the offence punishable under Section 7 and under Section 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act (Henceforth referred as the Act). The appellant was sentenced to suffer rigorous imprisonment for various terms and to pay various sums of fine with default clause. 2 The prosecution case is as under. One Bhagwat was an office bearer of a Public Trust. The appellant was working as Clerk in the office of Assistant Charity Commissioner, Beed. On 23/03/1993 the complainant Bhagwat filed an application for obtaining certified copies of certain documents, in relation to the Public Trust. On 29th March, 1993 he again made an 2 application for the certified copy. On 30/03/1993 he deposited copying fee of Rs.5/- with Clerk one Shri Kamble who was then looking after the work of issuing certified copies. On 02/04/1993 the complainant went to collect the copy but he was told that it was the appellant who was then looking after the work of issuance of certified copy. The complainant approached the appellant for the certified copy. The complainant told him to come after 10 to 15 days. On 25th June, 1993 the complainant again approached the appellant and demanded the certified copy. The appellant then asked for a bribe of Rs.300/- for issuing certified copy quickly. The complainant paid Rs. 50/- as advance to the appellant and the appellant promised him to deliver the copy on 28th of June. On 28th June, 1993 the complainant went to the A.C.B. office and lodged his complaint. This complaint was reduced into writing and it became the F.I.R. of this case. Thereafter, the investigation officer arranged a trap by inviting two independent panch witnesses. Some time at 4.00 p.m. on that day the complainant and the prosecution witness No.2 the shadow panch approached the appellant in his office. The appellant before issuing certified copy demanded amount of bribe and he accepted the same from the complainant. The raiding party arrived and caught the appellant red-handed. The prosecution examined in all six witnesses and as said above the complainant is the prosecution witness No.1 and the shadow panch is the prosecution witness No.2. The Investigation officer is the prosecution witness No.4. 3 The learned advocate appearing for the appellant asserted that on the face of the prosecution evidence specially the depositions of the two material witnesses namely prosecution witness No.1 the complainant and prosecution witness No.2 the shadow panch, it would be seen that the prosecution has failed to prove its 3 case. He asserted that the prosecution could not prove the demand of the bribe amount by the appellant and so the case would fail. 4. In order to examine this, I went through the depositions of the prosecution witnesses No.1and 2 carefully. The prosecution witness No.1 narrated the earlier facts as per his F.I.R. but while narrating the incident that took place at the time of trap, he stated that when he demanded certified copy from the appellant, he handed it over to him and thereafter he stated that he took out the tainted currency notes from the pocket and held them in front of the appellant. He stated that the appellant thereafter took those currency notes and placed them in his shirt pocket. What is pertinent to note in this deposition is the omission on the part of this witness to state that before or after the issuance of certified copy, the appellant demanded specifically the amount of bribe which was agreed to be given earlier. As per the version of the prosecution witness No.1 the complainant, the entire incident took place at the table of the appellant. In Cross examination, the appellant further added that after raiding party, the Investigation Officer came there. The appellant took out the tainted currency notes from his shirt pocket and handed over it to the Investigation Officer. 5 The version of the prosecution witness No.2 in respect of the incident that took place at the time of trap is completely different. The prosecution witness No.2 the shadow panch stated that after they entered the office of the appellant, the complainant asked the appellant as to whether his work was done. Thereupon, the witness states that the appellant prepared the certified copy and kept the same before the Superintendent for his signature. He said that the appellant then asked the complainant as to what had happened to the money which was agreed. Thereafter he said, the appellant led them 4 to another room of the office and then the complainant handed over the tainted currency notes to the appellant which the appellant accepted in his hand and kept it in his shirt pocket. He said thereafter all three of them came out of that room and went near the table of the appellant where the appellant sat down. He said, by that time, the certified copy was already signed by the Superintendent and the appellant handed over the same to the complainant. Thereupon the raiding party arrived. 6 There is thus a marked difference between the two versions of the events that took place at the time of the trap. The complainant completely omitted the demand part whereas the shadow panch confidently stated that the appellant said, as to what had happened to the money which was agreed earlier. However, the Investigation Officer in his cross examination admitted that the panch witness had not stated before him when he recorded his statement that the appellant had made enquiry to the complainant as to what had happened to the money which was agreed earlier. Thus the deposition of the shadow panch in respect of the appellant’s demand of bribe is doubtful. So, the prosecution has clearly failed to prove that at the time of trap, the appellant demanded the amount of bribe. 7 The learned judge of the trial Court was made aware of this lapse on the part of prosecution. He held that due to certain suggestions given to the complainant in the cross examination, the laps would be insignificant. The relevant portion of the judgment of the trail Court is quoted below. “On going through the evidence of Bhagwat (P.W.1) it is seen that he did not state that accused demanded money on 28/06/1993 when he and panch No.1 Sk. Mohmood (P.W.2) went in the office, but it is pertinent to note that during cross-examination of Bhagwat (P.W. 1) by the accused it was suggested to him that accused did not 5 demand any bribe money of Rs.300/- to him and did not accept Rs. 50/- on 25/06/1993 and that agreed to accept remaining bribe amount of Rs.250/- on 28/06/1993. The said suggestions were denied by Bhagwat (P.W.1) and this itself is sufficient to hold that accused demanded money on 28/06/1993 from Bhagwat (P.W.1) when Bhagwat (P.W.1) and panch no.1 Sk. Mahmood (P.W.2) had been to office of Assistant Charity Commissioner, Beed. Besides that it is worth-while to note that the evidence of independent panch witness no.1 Sk. Mahmood (P.W.2) specifically reveals that accused prepared the certified copy and kept it before Shri Vaishnav for signature and thereafter accused made enquiry with Bhagwat (P.W.1) asking him what happened to the money which was agreed. The said enquiry made by accused with Bhagwat (P.W.1) amounts to the demand of remaining bribe money of Rs.250/-.” 8 I think the manner in which this aspect of the prosecution case is appreciated by the learned judge of the trial Court is grossly erroneous. The learned Judge could not have brushed aside the lapse on the part of the prosecution witness No.1 when he omitted to mention that the appellant demanded the bribe amount from him. The learned judge could not have relied upon the deposition of the shadow panch to hold that there indeed occurred the demand from the appellant for the bribe amount. The shadow panch was an independent witness. He was not interested in the complainant’s case. It was the complainant to whom the appellant allegedly demanded bribe on the previous day and so it was the complainant who should have stated again that the appellant demanded previously agreed amount of bribe. He should have stated further that such demand was made by appellant in presence of the shadow panch at the time of trap. 9 The prosecution thus would rely only on deposition of the shadow panch to prove that at the time of trap, the appellant demanded the bribe amount from the complainant. There is practically no corroboration in this deposition coming from the 6 complainant, who, as said above, should have been more eager to state the facts of the case more particularly. 10 In a case of this nature corroboration to material particulars is necessary to prove the case against an accused. This principle was laid down by the Supreme Court in the case of Pannalal Damodar Rathi v. State of Maharashtra (AIR 1979 Supreme Court 1191). The Supreme Court held as under : “There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of S. 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.” 11 The learned Judge, in subsequent part of his Judgment also mentioned that in view of the evidence that has come on record against the appellant, he would be able to raise presumption contemplated under Section 20 of the Act. Section 20 of the Act reads as under : Section 20 : Presumption where public servant accepts gratification other than legal remuneration. - (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, 7 as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he known to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 12 The learned A.P.P. asserted that in this case even if the demand is not proved, but the acceptance of the tainted currency notes is amply proved against the appellant, and therefore, presumption under Section 20 of the Act is permissible. To this, the learned Advocate appearing for the appellant placed reliance on the Judgment of Supreme Court in the case of V. Venkata Subbarao v. State represented by Inspector of Police, A.P. (2006) 13 Supreme Court 305. In this Judgment, the Supreme Court held that the presumption against an accused cannot be raised unless the demand of bribe is proved properly. The Supreme Court held as under : “24. Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 8 provides for raising of a presumption only if a demand is proved. 25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. 26. In M.S. Narayana Menon v. State of Kerala, this Court held : (SCC P. 55, para 45) “Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceedings.” 13 In this case also, going by the deposition of the complainant, the appellant can certainly raise a defence that the tainted currency notes put in his hand forcibly by the complainant. The appeal should therefore succeed. ORDER a) The appeal stands allowed. b) The impugned judgment and order passed by the learned Special Judge, Beed in Special Case No. 131/1993 dated 08/05/2001 stands set aside. c) The appellant Kalyan s/o Rohidas Gade, stands acquitted. [A.V. NIRGUDE, J.] ts k/ok