1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEALS NO. 82 & 84 OF 2006 CRIMINAL APPEALS NO. 82 OF 2006 Ramesh Mahadev Gurav, R/o. House No. 61, At Gaongori, Post: Majali, Taluka and District: Karwar, Karnataka. .... Appellant V/s S T A T E, Through the Central Bureau of Investigation, Altinho, Panaji, Goa. .... Respondent Mr. R. Menezes, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. AND CRIMINAL APPEALS NO. 84 OF 2006 Shri Chambel Singh Chandel, R/o. 1st floor, Revankar Bldg., Kumarwada, Merces, Goa. Permanent address: Village Manak Mazara, Gadian, P.O. Kheri Bhutan, Dist. Karnal, Harayana. .... Appellant V/s S T A T E, Through the Central Bureau of Investigation, Altinho, Panaji, Goa. .... Respondent Mr. Arun Bras De Sa, Advocate for the Appellant. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 16th SEPTEMBER, 2008. 2 JUDGMENT : These appeals are by the accused who have been convicted and sentenced under Section 7, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Section 120-B of the Indian Penal Code by the learned Special Judge, Panaji, by Judgment/Order dated 24/11/2006. 2. Accused no.1 (appellant in Criminal Appeal No. 82/2006) and accused no.2 (appellant in Criminal Appeal No. 84/2006) were the Superintendent and Director, respectively of KVIC (Khadi and Village Industries Commission), Panaji. Accused no. 3 Kustha R. Mazalkar and Govind Kavle were the Supervisors in the said office, and while the former was prosecuted as A3, and was discharged by order dated 24/03/2004, the latter was examined as PW5. 3. Charge having been framed against both the accused under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code, prosecution examined 10 witnesses in support of the case. The case of the prosecution is that both the accused in furtherance of the criminal conspiracy on or about 18/08/2000 abused their official position, demanded and accepted illegal gratification of Rs. 5,000/- from Shri Shekhar Chari for the purpose of giving consent to obtain a loan 3 under KVIC Scheme. 4. The accused pleaded not guilty. The case of Gurav/A1 is that the said Shekhar Chari had come to their office on 18/08/2000 and had brought some leaflets and had stated that he wanted to use the toilet but instead of going to the toilet, the said Shekhar Chari went to the store room and kept a pamphlet there containing cash of Rs. 5,000/- and after the said Shekhar Chari returned, Gurav/A1 told him that his file was ready two days before and told him to collect the same from Shri Katkar/PW4 and then the said Shekhar Chari/PW1 collected the file, thanked Gurav/A1 and shook hands with him and left the office and after sometime the said Shekhar Chari entered the office with 4 to 5 persons and stated that Gurav/A1 had taken bribe and then went to the toilet and brought a pack of brochures and gave to the CBI. Gurav/A1 further stated that the wife of the said Shekhar Chari is an acquaintance of Shri Kavle/PW7 and the said Shekhar Chari falsely implicated him with the help of the said Shri Kavle/PW7. 5. The case of Chandel/A2 was one of denial simpliciter. 6. The learned trial Court after considering the evidence produced came to the conclusion that the prosecution had amply proved that the accused had entered into a criminal conspiracy to demand illegal gratification from those 4 who approached KVIC under margin money scheme. The learned trial Court also held that the prosecution had proved beyond reasonable doubt that the complainant Shekhar Chari had approached the KVIC under margin money scheme and the accused had demanded a bribe pursuant to which the said complainant had lodged complaint and a trap was laid. The learned trial Court also held that an amount of Rs. 5,000/- which was smeared with phenolphthalein powder was received by Gurav/A1 and only thereafter Chandel/A2 had cleared the file, and, after the raiding party had received the predetermined signal, they had entered the office and held Gurav/A1 and subjected him to phenolphthalein test, and, as per the report of the analyst Shri Chabra/PW9, the hand wash taken from Gurav/A1 had contained phenolphthalein and sodium carbonate. The learned trial Court held the evidence conclusively proved that an amount of Rs. 5,000/- the serial numbers of which tallied with those mentioned in the prepared panchanama, were recovered from the store room of KVIC which gave rise to presumption under Section 20 of the Prevention of Corruption Act, 1988 and, therefore, the burden to prove to the contrary by reasonable probability was on the accused which the accused failed to prove. 7. The case of the prosecution essentially rests on the evidence of Dy. S.P. Tamgadge/PW8 who conducted the raid and that of Shekhar Chari, the complainant and Milind Kulkarni/PW2 who was an independent panch 5 witness. Prosecution also examined Basudev Gupta/PW3, the Director of Accounts of KVIC at Mumbai, who stated that Chandel/A2 was the Director of KVIC, Goa, and as a State Director, Chandel/A2 was required to supervise all the other departments of Khadi and Village Industries and for that he had to keep a liason with several state authorities such as banks and he could recommend products up to Rs. 10 lacs in case of individuals and up to Rs. 25 lacs in case of institutions and one of the objects of empowering the State Director to recommend the projects was to generate employment and upliftment of needy villagers. He also stated that banks had discretion to refuse loan despite recommendations of the State Director. The prosecution also examined Ratnakar Gaikwad/PW6 to prove the sanction given by the Khadi and Village Industries Commission. Besides, the prosecution also examined Shrikant Katkar/PW4, a typist, Rohidas Borkar/PW5, a peon, besides the said Supervisor Govind Kavle/PW7. K.S. Chabra/PW9 is the Senior Scientific Officer at the Government of Laboratory at New Delhi who found that the hand wash taken and sent for analysis in 2 bottles of Gurav/A1 was containing phenolphthalein and sodium carbonate. As 18/08/2000 was the last day in office of Dy. S.P. Tamgadge/PW8, the investigations were taken over on 19/08/2000 by CBI Inspector Ram Avtar/PW10. 8. Rohidas Borkar/PW5 as well as Govind Kavle/PW7, the peon and the supervisor, in the said office of KVIC, have both spoken about the meeting 6 called by the Director/A2 in his chamber in June or July of that year which was attended by Kavle/PW7 with other staff. Kavle/PW7 stated that in the said meeting, Chandel/A2 had told them that whenever any party approaches them for a loan under margin money scheme they should take a commission of 10% of the loan and that he would keep 60% of the commission for himself and 40% of the commission would be distributed amongst the staff members. According to him, he and Katkar/PW4 had attended the said meeting. Subsequently, Kavle/PW7 was dismissed from service on 5/01/2005 by Chandel/A2 after holding an inquiry on the ground of corruption. Rohidas Borkar/PW5 stated that Chandel/A2 had called for a meeting sometime in the month of July or August of all the employees in his cabin and when he had inquired with others as to why the said meeting was called, they told him that it was called in connection with commission of margin money. He sated that he did not know whether Chandel/A2 used to take any commission from the parties for clearing their files, but he had told that he did not want to get involved in the said racket and, as such, he had not attended the meeting. In cross-examination he had stated that he had heard the conversation which was going on in the cabin and after the other employees had come out and he had heard the said conversation at a distance of about 2 meters and at the time of the meeting the door of the cabin of Chandel/A2 was open. In further cross-examination he had stated that he did not recollect the time of the said meeting or for how long it had lasted. In 7 further cross-examination he had stated that it is Gurav/A1 and Chandel/A2 who had personally called all the employees inside the cabin of Chandel/A2 and Chandel/A2 had told him to remain present in his cabin at the time of the meeting, at which he had told him that he did not want to attend to any such meeting. 9. The learned trial Court took note of the fact that Govind Kavle/PW7, in the inquiry proceedings held against him, he had stated in his statement dated 27/08/2000 that no meeting was held in the chamber of the accused no. 2 to discuss about 10% commission and that his statement by the CBI recorded on 27/08/2000 was recorded by force. He had also stated that he was not in a mentally fit condition when he had made the statement in the inquiry proceedings as he had a brain haemorrhage and was admitted in hospital. He had also stated that he had not made any application bringing to the notice of the inquiry officer that his statement was not correct and that it was made when he was not in a fit condition. The learned trial Court, therefore, proceeded to doubt the credibility of the witness as he had made two contradictory statements and therefore held that his evidence did not inspire any confidence. It is to be noted that Kavle/PW7 had admitted that in the year 1996, police complaint was filed against him alleging corruption of Rs. 1.5 lacs while sanctioning a loan to one Maheshwari Society for which he was suspended and an inquiry was held and he was dismissed. In my view, 8 the learned trial Court was not right in rejecting entirely the evidence given by him. His evidence ought to have been accepted as corroborative to that of Rohidas Borkar/PW5. There is nothing in the evidence of Rohidas Borkar/PW5 to make it improbable. Rohidas Borkar/PW5 is a retired peon of the said office and there is no reason why he should have deposed against any of the accused nor any reason have been suggested on their behalf. With the evidence of these two witnesses, and that of Katkar/PW4 the prosecution had proved that there was a plan drawn to charge 10% commission on the subsidy payable, by KVIC on advances taken from Banks. 10. Dy. S.P. Tamgadge/PW8 stated that on 18/08/2000 Shekhar Chari/PW1 came to his office with a written complaint that he had applied for a loan from KVIC and for processing the file Gurav/A1, office Superintendent, on behalf of Chandel/A2, the State Director had demanded a sum of Rs. 5,000/- as a bribe and had given a written complaint. He stated that he registered the same after taking the said complainant Shekhar Chari to the Superintendent of Police, CBI, and, he was asked to investigate the case and to lay a trap, and as such, he secured the presence of two independent witnesses by name Mr. Milind Kulkarni/PW2 from Bank of India and one J.V. Raje, employee of Telecom office, and then the said witnesses were introduced to the complainant and the contents of the complaint were disclosed to them and they had put their signatures on the said complaint after 9 reading the same and then the complainant had handed over cash of Rs. 5,000/- which was to be given on demand as a bribe in the denomination of Rs. 5,00/- x 7, Rs. 100/- x 13 and Rs. 50/- x 4 and the serial numbers of the said notes were recorded on the pretrap panchanama and both the panch witnesses were shown the demonstration as to how the phenolphthalein works and that was done by inspector Chonkar. He further stated that thereafter Inspector Chonkar was asked to smear phenolphthalein powder on the said notes of Rs. 5,000/- and personal search of the said Chari was taken and the said Shekhar Chari was asked to keep the said notes in his pocket and was instructed not to touch the said notes unless demanded by the accused. He further stated that they had directed Milind Kulkarni/PW2 to remain with the complainant Chari and to overhear the conversation and to see the transaction between the said complainant and the accused and he was also instructed to give a signal by raising both his hands after the bribe was paid by the complainant to the accused. Dy. S.P. Tamgadge further stated that they formed a team and decided to take positions on reaching KVIC office and they had taken another kit with them. The team comprised of the said complainant Shekhar Chari, both the panch witnesses, PI Shaikh Chonkar, Constable Nagnuri and Constable PCK. J. Manoj and as pretrap panchanama was prepared before leaving the office, it was signed by the panchas and by him and they left the office at about 15.30 hrs. and reached KVIC office at 15.40 hrs and on reaching there the complainant proceeded to 10 the office while they took up their respective positions and at about 16.30 hrs. Kulkarni/PW2 and Chari/PW1 came out of KVIC office and Katkar raised his hands and gave them the predetermined signal and on getting the signal he along with other members of the trap proceeded to the office and Kulkarni pointed to the person who was sitting at the table namely Gurav/A1 and this was confirmed by Mr. Chari and immediately thereafter he caught hold of his right wrist and PI Shaikh caught hold of his left wrist, after they identified themselves and the accused identified himself and he asked Gurav/A1 whether he had demanded the bribe and Gurav/A1 did not reply but appeared to be nervous whereupon he directed head constable Nagnuri to prepare a solution of sodium carbonate in a clean glass from the kit brought by them and accordingly he prepared the solution and Gurav/A1 was asked to dip his right hand fingers in the solution and then his left hand fingers and the solutions which were colourless turned into pink which were then transferred in clean glass bottles and sealed in the presence of panchas and marked as Exhibit A and B, respectively. Dy. S.P. Tamgadge/PW8 further stated that he asked Gurav/A1 as to where he had kept the money that is cash of Rs. 5,000/- which was paid to him by the complainant and Gurav/A1 took them to the store room of KVIC office and the complainant as well as both panchas followed them to the store room where there were some files, office papers, newspapers, etc. and Gurav/A1 pointed out to a corner of the said store room where there was one leaflet of KVIC and one of the pancha witnesses was 11 asked to remove the leaflet and when removed it contained the cash of Rs. 5,000/- and both the pancha witnesses tallied the numbers of the notes with the numbers of the notes mentioned on the pretrap panchanama and the said numbers tallied and the said notes and the leaflet was seized and sealed and marked Exhibit C under panchanama prepared in the presence of pancha witnesses. He further stated that complainant had handed over one file which contained loan documents and the said file was also seized in the presence of pancha witnesses. He stated that he seized the attendance register of the office of KVIC under separate seizure memorandum. He further sated that the accused was arrested under an arrest panchanama. In cross-examination he stated that the complainant had mentioned in his complaint that Gurav/A1 had demanded bribe of 10% on subsidy which works out to Rs. 17,500/- on a loan of Rs. 1,75,000/-. He further stated that he came to know the designation of the accused only through the complaint. In further cross- examination, he stated that they maintain a station diary but do not maintain a seal movement register. He also stated that he did not know whether as per the manual they were required to keep a register of seal movement. He further stated that only he was authorised to use his personal seal and the other officers had their own seals, but did not know whether there was a uniform departmental seal, but no such seal was provided to him by the office and the seal which he was using was made by him and the said seal was always in his custody. He further stated that there was a wash basin in the 12 room where the demonstration was conducted and further stated that the seal was in his possession even after they had used the seal to seal the articles. He also stated that he did not recollect as to from which corner, the said leaflet was recovered, and, denied the suggestion that no cash was attached under seizure memorandum. He further stated that till the time he was investigating officer he always used his personal seal and after he left the job he took the seal along with him as it was his personal seal. He denied the suggestion that he had deposed falsely. 11. Shekhar Chari/PW1 stated that he was the proprietor of M/s. Anirudha Engineering Works at Honda Industrial Estate and as he wanted to expand his business in another name at Colvale Industrial Estate, he had approached Bank of Baroda at Colvale on 5/06/2000 in order to avail loan facility and had told the Manager about his proposal and the Manager had suggested to him to go to KVIC margin money scheme where he would get 25% of subsidy on the total costs of his project and on the very next day he went to the office of KVIC and met Mr. Kavle/PW7 who gave him a form and told him to fill the same and on 27/07/2000 he submitted the form through the said Mr. Kavle. He stated that on 7/08/2000 he sent his wife Anirudha Chari to the office of KVIC to inquire about the application as he was busy with some other work and he could not go, and, his wife returned home and told him that Kavle/PW7 had told her that she should send him to meet the 13 Director Shri Chandel and as such on 8/08/2000 he went to the said office and he met Gurav/A1 and told him that he wanted to meet the Director but the Director was busy and after sometime Gurav/A1 told him that his file was completed and whether he had brought something for his boss, the said Chandel, and, when he inquired with Gurav/A1 as to what was required to be brought, Gurav/A1 told him that he would have to pay 10% of subsidy amount, if he wanted his loan to be cleared. As per him 25% subsidy would work out to Rs. 1,75,000/- and 10% of that would work out to Rs. 17,500/- and he returned home after telling Gurav/A1 that he did not have money and again contacted Gurav/A1 on phone when he told him that he had to pay Rs. 17,500/- and if he wanted his file to be cleared. He further stated that on 11/08/2000 he went again to the office at about 10.30 to 11.00 a.m. but Gurav/A1 was not available but met Shri Mazalkar who inquired from him as to why he had come and when he told that he wanted to meet Gurav/A1 as Gurav had demanded a sum of Rs. 17,500/- to clear the file, Shri Mazalkar told him that he would talk to Gurav and he waited in the office till the return of Gurav/A1 at about 12.00 hrs. and there was a talk between Mazalkar and Gurav/A1 and thereafter Gurav called him and told him that he would clear his file if he paid Rs. 5,000/- and further told him to pay the said amount on the same evening whereupon he told Gurav/A1 that he wanted some time to arrange for the said money and then he told him that he should pay it by next Friday i.e. 18/08/2000 and at that time Mazalkar was also present. He further 14 stated that he did not want to pay the said money to Gurav/A1 and therefore on 18/08/2000 at about 10.30 to 11.00 a.m. he went and met Dy. S.P. Tamgadge/PW8 and told him that Gurav/A1 had demanded bribe from him and gave a written complaint and immediately thereafter Shri Tamgadge secured the presence of two pancha witnesses namely Milind Kulkarni/PW2 and J.V. Raje and the contents of the complaint were read over to them. He further sated that he had taken along with him a sum of Rs. 5,000/- which he handed over to Dy. S.P. Tamgadge for laying the trap. He gave the denominations of the notes and further gave the details of the demonstration which was held to show how phenolphthalein powder turns pink when added to a solution of sodium carbonate. He stated that the P.I. Chonkar then applied the said powder on the noes handed over by him by using a cotton swab. He stated that his personal search was conducted and whatever he had was kept in the side pant pocket and his shirt pocket was made empty where the said Rs. 5,000/- were placed with instructions not to touch till the demand was made by Gurav/A1. He also gave details of instructions given to Kulkarni/PW2 and further details as to how they entered the office of KVIC. He also stated that after preparing a panchanama they left the office and the CBI officers had taken with them the trap kit, etc., and they reached KVIC office at about 3.40 p.m. and he and Kulkarni/PW2 entered the office located on the ground floor of the Cedmar Apartments at Panaji where he saw Gurav/A1 sitting on his table, opposite the entrance and he wished him, 15 Gurav/A1 told them to sit and after sometime Gurav/A1 got up and went into the chamber of Chandel/A2 and returned after about 30 minutes and thereafter asked him in marathi whether he had brought the money and when he answered in the affirmative he told him in marathi to come along with him and walked towards left side of the hall and Milind Kulkarni/PW2 was following him but Gurav/A1 told him to stay in the hall itself, and, after he and Gurav/A1 went into the store room, Gurav/A1 told him to hand over Rs. 5,000/- and he removed Rs. 5,000/- from his pocket and handed over to Gurav/A1 and the said Gurav/A1 accepted the said amount and counted the same and then he picked up a pamphlet of KVIC and put it in the said pamphlet and told him to leave the store room, which accordingly he did, and Gurav/A1 followed him after a few seconds and thereafter Gurav/A1 went into the chamber of Chandel/A2 and took along with him his file and he went along with him to the chamber of Chandel/A2 and Gurav/A1 told Chandel/A2 that he had paid Rs. 5,000/- as per his instructions and Gurav/A1 told Chandel/A2 to sign the file, and, thereafter Chandel/A2 signed his file immediately in his presence and further remarked in Hindi that he had not given the required amount and people paid much more, etc. ('Kya Chari saab, apne to thode paise diye hai, jitna lana tha utne nahim diye, lok tho jada dete hai, lete to gusha nahim karte dete to ghusa karte') and Gurav/A1 was present and thereafter he and Gurav/A1 came out of the chamber of Chandel/A2 along with the file and then Gurav/A1 handed over his file to another official 16 who was sitting adjacent to his table and who made some entries on the register, and then put the file in a big envelope and addressed it to the Branch Manager, Bank of Baroda, Colvale, and, handed over the file to him. He stated that Milind/PW2 was still sitting