1 Cri.Appeal No.128-99 JUDGMENT Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.128 OF 1999 Mr.Anil Jasraj Bothra ..Appellant Age : Adult, Occupation : Service Residing at Pimpri  Chinchwad Municipal Corporation, At & Post Chinchwad, District Pune V/s. State of Maharashtra ..Respondent Mr.A.H.H.Ponda, Advocate, for the Appellant Mrs.P.P.Shinde, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 15TH SEPTEMBER, 2010 JUDGMENT . This Appeal is directed against the judgment and order passed by the learned Special Judge, Pune, in Special Case No.13 of 1992. By the said judgment and order, the appellant is convicted of the offence punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous 2 Cri.Appeal No.128-99 JUDGMENT imprisonment for a period of 1 year and to pay fine of Rs.500/-. 2. Facts which are material for deciding this appeal are as under :- Complainant Chandrakant Patil had purchased a flat from one H.G.Munga, who was resident of Delhi. On 21st June, 1990, an agreement of sale was executed under which a sum of Rs.5000/- had been paid as an earnest amount and balance amount of Rs.1,25,000/- was to be paid at the time of execution of sale deed. H.G.Munga had signed and delivered a transfer form on 21st June, 1990 itself. The informant Patil applied to the Society and the Society gave him 'No Objection Certificate' on 15th July, 1990. The informant was made a member of the Society on 5th October, 1991. The informant filed an application before the Pimpri - Chinchwad Municipal Corporation for mutation of flat in his name. This application was filed because the applicant 3 Cri.Appeal No.128-99 JUDGMENT was to get a loan of Rs.25,000/- at concessional interest at the rate of Rs.4% per annum from his employer. It is alleged that the informant first met the appellant, who was Clerk dealing with the relevant work of mutation on 5th December, 1991. The informant's statement was recorded on 11th December, 1991. Again there was a meeting held on 16th January, 1992 at which appellant Bothra explained to the informant that the officer does not sign such mutation unless a sum of Rs.2000/- is paid. Ultimately a deed was struck on that day at Rs.300/-. On 17th January, 1992 the appellant repeated his demand and then the informant decided to approach Anti Corruption Bureau. 3. On 22nd January, 1992, the informant went to the office of Anti Corruption Bureau with relevant documents and made a report stating that Bothra had demanded a sum of Rs. 300/-. Panchas were called and pre-trap 4 Cri.Appeal No.128-99 JUDGMENT panchanama was drawn up. Raiding party went to the office of Pimpri Chinchwad Municipal Corporation. The informant P.W.2 Chandrakant approached the appellant, who was accompanied by one Shankar Salunkhe. On informant's asking about his work, Bothra repeated the demand. The informant asked him as to where he should pay the money. On appellants telling that informant could pay him there itself. The informant paid the bribe money which had been coated with anthracine Powder to the appellant. The appellant picked it in his right hand and put it in his left hand shirt pocket. After receiving the pre- determined signal raiding party reached the place, searched Bothra, the appellant and seized the bribe money. The fingers of his right hand and left hand shirt pocket glowed when seen in ultraviolet light. A panchanama was drawn up. The raiding officer filed a report on which an offence was registered and on completion of investigation charge sheet 5 Cri.Appeal No.128-99 JUDGMENT was sent, after obtaining necessary sanction from appellant's employer. 4. The learned Special Judge charged the appellant for the offence punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to which appellant pleaded not guilty and claimed to be tried. At the trial, the prosecution examined in all five witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence that the bribe money was forcibly put in the pocket of the appellant, the learned trial Judge held the appellant guilty and convicted him for the offence punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for a period of 1 year and to pay fine of Rs.500/- on both the counts. Aggrieved thereby the appellant has preferred 6 Cri.Appeal No.128-99 JUDGMENT this appeal. 5. I have heard the learned Counsel for the appellant and the learned APP for the State. 6. The learned Counsel for the appellant submitted that the complainant is thoroughly dishonest person who was attempting to get a flat mutated in his name though it was not sold to him and for which he had paid an earnest amount of Rs.5000/- against consideration of Rs.1,30,000/-. He submitted that since the complainant wanted to secure of a loan from his employer some how by hook or crook, the complainant wanted the flat to be mutated in his name. According to the learned Counsel since mutation could not have been taken place without production of sale deed and a copy of Index No.2, the appellant or his superior could not have obliged the complainant. He pointed out from the evidence 7 Cri.Appeal No.128-99 JUDGMENT of P.W.3 Shivaji Kondalkar the officer under whom appellant worked, that a public notice had been displayed by the Municipal Corporation in its office about requirement of the documents to be produced for seeking mutation. He submitted that therefore, the complainant could not have sought mutation of the flat in his name without producing requisite documents and since the appellant refused to oblige him, the informant made a false complaint and had the appellant falsely trapped. 7. The learned Counsel for the appellant next submitted that the panch P.W.1 Deepak Bhalerao was more enthusiastic than the complainant himself. The witness went on to state that after the trap, he had seen not only Sale Deed and copy of Index Number II in respect of the flat but also statement of Munga, the vendor when it was neither the case of informant nor of the investigating officer 8 Cri.Appeal No.128-99 JUDGMENT that any such documents at all existed. The learned Counsel for the appellant submitted that exaggeration by the witness would show his interest in the matter when he was expected to be an impartial witnesses. 8. The learned Counsel for the appellant submitted that appellant's colleague Shankar Salunkhe, who was present at the time of the trap with the appellant was examined by the prosecution as P.W.4 but he turned hostile. The version of P.W.4 Salunkhe is that the appellant had asked the complainant to produce remaining papers. The learned Counsel for the appellant submitted that the currency notes being found in the shirt pocket of the appellant can be explained even by the possibility of the informant himself inserting the notes in the pocket of the appellant. He submitted that glow of anthracin powder observed on the finger tips of the appellant is also explained by the fact that the 9 Cri.Appeal No.128-99 JUDGMENT appellant was asked by the investigating officer to take out the notes after the raid. Therefore, according to the learned Counsel, this trap is in fact a trap for falsely implicating the appellant. 9. The learned APP submitted that there was absolutely no reason for the complainant to falsely implicate the appellant. She submitted that ordinarily a person would approach Anti Corruption Bureau only after finding that expectations as a citizen are not fulfilled and demands of corrupt officers go on increasing. She submitted that there is no enemity or any contact between the informant and appellant prior to this communication about getting mutation entry done. She submitted that in these circumstances ordinarily, there would be no reason for a citizen to make false allegation about the demand of bribe against a Municipal employee. He submitted that the Complainant was not to 10 Cri.Appeal No.128-99 JUDGMENT get anything by making these allegations since allegations by themselves would not alter the fact that there would be no mutation entry in the name of the complainant and complainant would not get any loan from the employer. Thus, complainant was not to gain by making false allegations. Therefore, according to the learned Additional Police Prosecutor, the word of the complainant had to be believed as has been rightly done by the learned trial Judge. 10. I have carefully considered these submissions. First, in this case, as rightly pointed out by the learned counsel for the appellant, the complainant was seeking to have flat mutated in his name without having requisite documents in his possession. The possibility of frustration in not achieving the object of getting mutation effected, leading to the complainant's filing a report against the appellant cannot be entirely ruled 11 Cri.Appeal No.128-99 JUDGMENT out. For getting the flat mutated in his name, the complainant would have been required to secure presence of his vendor Munga to get sale deed registered, for which, impliedly he would have to pay balance consideration of Rs. 1,25,000/- the requisite stamp duties etc. To avoid all this the possibility of complainant pressurizing the appellant cannot be ruled out. The appellant's superior P.W.3 Shivaji Kondalkar has stated the appellant would have been required to put up the papers before him and he had categorically stated that without a sale deed and a copy of Index No.2, mutation was out of question. 11. The contention of the learned Counsel for the appellant about the doubtful veracity of P.W.1 Deepak Bhalerao also can not be lightly brushed aside. It was nobody's case that informant had in his possession or had handed over to the appellant a copy of any sale deed or Index No.2 or statement of Munga, 12 Cri.Appeal No.128-99 JUDGMENT when P.W.1 claimed to have seen these documents after the raid. This would cast a doubt on his truthfulness and his testimony becomes doubtful. It could afford no corroboration to the testimony of P.W.2 Chandrakant complainant. 12. In the light of this, the possibility of P.W.2 Chandrakant slipping currency notes in the pocket of the complainant has to be examined. The appellant had claimed that his finger tips got tainted when he was asked to take out the notes. Therefore, it was not necessary that the finger tip got tainted while he received notes. 13. In view of this, and particularly in the light of the fact that evidence of P.W.1 Deepak becomes doubtful, the appellant could have been given benefit of doubt by the learned trial Judge since the probability of notes having been slipped in his pocket was 13 Cri.Appeal No.128-99 JUDGMENT entirely ruled out. 14. In view of this, the Appeal is allowed. Conviction of the appellant for the offence punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sentence to suffer rigorous imprisonment for a period of 1 year and to pay fine of Rs.500/- is set aside. Fine if paid be refunded to the appellant. (R.C.CHAVAN, J.)