1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.310 OF 1991 The State of Maharashtra. ..Appellant Versus Chandrakant Dhondiba Raut, Block A/14, Sanjeevan, M.J.Phule Road, Nigaon, Mumbai 400 014. Respondent.Original Accused Mrs M.H. Mhatre, A.P.P. Advocate for the Appellant. Ms Vishranti Nawale i/b Mr A.P. Mundargi, Advocate for the State. CORAM: A.R.JOSHI,J. DATE : 1st July,2009. ORAL JUDGMENT. 1. Present appeal is filed by the State of Maharashtra against the acquittal of the sole accused from the Special Case No. 12 of 1987 from the charges of demand and acceptance of illegal gratification of Rs. 500/-from the complainant. Said order of acquittal was passed by the 2 learned Special Judge, for Greater Bombay (hereinafter referred to as the Special Judge ) on 5.11.1990 acquitting the respondent-accused for the offence punishable under Section 161 and also punishable under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the P.C.Act ). 2. Heard rival submissions at length. Learned Advocate Ms Nawale for the respondent-accused virtually took this Court through the entire substantive evidence of all nine prosecution witnesses and mainly the substantive evidence of complainant P.W.No.1,panch witness P.W.No.2. 3. Prior to appreciating the rival submissions, the case of the prosecution, as alleged against the respondent- accused can be summarized, as under:- 4. Complainant P.W.No.1 was the employee of National Center for Performing Arts ( for short referred as N.C.P.A .) at Nariman Point, Mumbai and such establishment had theatre premises and various other buildings having the electrification and electrical installation. The theatre run by the said Establishment is known as Tata Theatre, Bombay at Nariman Point. Annually, at the end of the calender year, there is a sort of requirement of producing inspection certificate of the electrical installations for the purpose of licensing and copy of such certificate is 3 required to be produced before the police authorities. Such inspection certificate is required to be obtained from the Electrical Department of Public Works Department (P.W.D.Bombay) and in fact according to the case of the complainant there was visit of present respondent-accused then being the Assistant Electrical Inspector of P.W.D. Bombay to the establishment of the said N.C.P.A. Being a public servant, the respondent-accused was supposed to do his work as per the requirements of office procedure and after getting necessary inspection done at the premises of N.C.P.A. However, in order to do such work allegedly there were demands made by the respondent-accused on various dates i.e., on 27.11.1984, 14.11.1984 and 29.12.1984 and lastly on 31.12.1984. According to the case of the prosecution, last such demand was made at the office of the respondent-accused situate in the P.W.D., building adjacent to the building of the High Court of Bombay. Such demand was made and allegedly the bribe amount of Rs. 500/- was accepted for getting the work done as to issuance of inspection certificate, but occurred allegedly in the cabin of the respondent-accused stood on the first floor of P.W.D.,building and happened on 31.12.1984 complainant a Charge man at Tata Theatre Bombay had interaction with the respondent-accused on various above mentioned dates and it 4 was ascertained by the complainant that the respondent- accused was insisting on some Chaypani i.e., `some extra money for doing the work and in fact according to the complainant the respondent-accused expressed such desire during his such visits to Tata Theatre. 5. It is also the case of the prosecution that after such first three meetings a complaint came to be lodged with Anti Corruption Branch on 29th December, 1984 and subsequently after conducting usual pre trap panchnama procedure in presence of panch witnesses including panch P.W.No.2, a trap was led at the office of the respondent- accused on 31.12.1984 in the afternoon. Allegedly, during the said trap there was a demand by the respondent-accused of illegal gratification of Rs. 500/- and such amount was handed over by the complainant P.W.No.1 to the accused which he kept in his brief-case. The said amount was tainted and smeared with anthracene powder. According to the prosecution, admittedly, during the said entire trap procedure panch P.W.No.2 was not inside the cabin but he was sitting outside the cabin in the Veranda on one bench and had over heard  part of the conversation that took place inside the cabin. It is also admitted that entire conversation could not be heard by the panch including the major portion as to actual demand of bribe by the 5 respondent-accused. According to the case of the prosecution, during such trap a tape recorder was used by the complainant on instructions from the raiding party in- charge Officer P.W.No.9. However, still it is admitted position that such tape recorded evidence could not be established so far as proof of demand of Rs.500/- by the respondent-accused for the reason that apart from introductory conversation, material conversation was not audible, when for the first time such tape was produced before the Trial Court and conversation was heard and prosecution witness complainant was questioned on the same. It is also admitted position that there was no transcript produced by the prosecution. This resulted in discarding of tape recorded evidence by the Trial Court and it was done rightly so in the opinion of this Court in view of the factual position and reasoning given in the impugned judgment. 6. According to the case of the prosecution, after the complainant gave pre-arranged signal to the raiding party members the accused was accosted and his hands and shirt etc., were tested under ultra violet lamp and which showed bluish colour glow showing the presence of anthracene powder on his hands and also near the opening latches of the brief-case of the respondent-accused. In 6 fact, according to the case of the prosecution, the tainted amount having currency notes of Rs.500/-was found from the said brief-case. Apart from the said currency notes, another amount of Rs.150/- was also recovered which was the official payment for obtaining certificate, given by the complainant to the respondent-accused. After the trap panchnama was over, the accused was put under arrest and necessary action was initiated and after recording of statements of witnesses charge sheet was filed against him and matter was taken before the Special Court, Greater Bombay. During the trial, nine prosecution witnesses were examined, out of them P.W. Nos. 1 and 2 are the main important witnesses and who are complainant and the panch P.W.No. 3 is a senior officer of the respondent accused, PW 4, 5 and 6 are the clerks from the office of the respondent - accused. P.W.No. 7 is the senior officer of the complainant from NCPA. P.W.No. 8 is the Sanctioning Authority of the prosecution and P.W.No. 9 is the Investigating Officer and a raiding party member who conducted the entire operation since the time of taking down the complaint till apprehending the accused. 7. Certain factual position is required to be mentioned at the threshold in order to have the scope of 7 the matter in the present appeal as to whether there could be an interference in the impugned judgment and order of acquittal. According to the case of the prosecution, for earlier demands dated 27.11.1984, 14.12.1984 and 29.12.1984 there is only substantive evidence of P.W.No.1 complainant. So far as the events occurred during the trap at the cabin of the respondent - accused are concerned, admittedly the panch witness was not present in the immediate proximity of the complainant, and he was sitting outside the cabin of the accused. At the cost of repetition, it can be mentioned that he has not heard the entire conversation between the accused and the complainant much less the material conversation regarding demand of bribe. 8. Another admitted position is that the tape-recorded conversation could not be established to pin down the respondent - accused. So far as the allegation of demand of bribe is concerned, though it was the substantive evidence of the complainant P.W.No.1, there is no corroboration to this evidence either by way of panch witness P.W.No.2 or by way of tape recorded conversation. On the effect of such tape recorded conversation not worthy of credence a great deal of explanation has been given by the Trial Court and the fact remains that it was not so accepted as incriminating and rightly so in the opinion of 8 this Court. Bearing in mind, this admitted factual position, it has to be construed in the present appeal as to whether the Trial Court had committed an error in appreciating the evidence of the prosecution witnesses and coming to the conclusion of acquittal of the accused. 9. During the arguments, learned A.P.P. Mrs Mhatre appearing for the State drawn attention of this Court towards the various answers given by the accused during his recording of statement under Section 313 of the Code of Criminal Procedure and specifically to the answers to question Nos. 60,61 and 62 and also regarding the earlier question Nos. 54 and 55. In order to appreciate such answers given by the accused and also to appreciate the arguments advanced on behalf of the State certain background is required to be given as to what are the requirements necessary for P.W.D. Department for issuance of the inspection certificate. Admittedly, letter Exh.11 i.e., advance intimation of annual inspection was given. In the said letter name of the attending A.E.I.,was not mentioned. However, according to the case of the prosecution and also according to the accused such work was assigned to the accused by his superior P.W.No.3. Admittedly, in the said Exh.11, there was no specific mention as to requiring the N.C.P.A.,to produce one 9 particular certificate specially known as Insulation Resistance Test (for short I.R.Test ). 10. Now, coming back to the answers given by the respondent-accused to the question Nos. 54,55, 60, 61 and 62 as referred to above it is submitted on behalf of the prosecution that production of such I.R. test certificate was not the necessity for want of its mentioning in Exh.11 and this fact has been categorically admitted by the accused while answering question No.60. Inspite of such factual position on the relevant day i.e.,on 29th December, 1984 the accused insisted on production of such certificate and also insisted on production of the log book of air condition plant. During recording of the evidence of the prosecution witnesses and mainly that of the complainant it was admitted on behalf of the accused that he did inquire for such I.R. test certificate but never asked for the log book of Air Condition Plant. It is also brought to the notice of this Court from such answers by the accused that if any particular document is not mentioned in advance intimation of annual inspection letter then without production of such document the inspection could be carried out and inspection certificate could be given on the payment of inspection fee which was Rs. 150/-in the present case. It is also answered by the accused, further pointed 10 out that if at all the inspecting authority find it necessary to have such I.R.test certificate without there being any mention in the advance intimation of annual inspection letter, such test could be carried out by the inspecting authority on the spot by using some instrument called as `Megger and admittedly such three instruments were available with the office of the respondent-accused and in fact he had conducted such test on the instrument and obtained the result but still insisted on I.R.test certificate. This factual admitted position is brought to the notice of this Court on behalf of the State to emphasis the aspect that it was the ulterior motive of the accused not to immediately pass the inspection certificate of the electrical installation but to delay the same on one count or the other unless his demand of bribe was satisfied. In the opinion of this Court, such answers of the respondent- accused do create a grave suspicion on the part of such respondent. However, it is to be seen whether such suspicion can be taken as a proof of demand and acceptance of bribe and which is must to be established in the case of the offences charged against the accused. 11. Though there are various other arguments advanced as to on which date whether immediately on 31.12.1984 or subsequently thereto i.e., whether on 11 2.1.1985 such inspection certificate came to be issued by P.W.D. However, in the opinion of this Court, though there was a great deal of discussion entertained by the Trial Court, such aspect is of no much relevance so far as demand and acceptance of bribe is concerned. Needless to mention that in such cases of trap the Court should seek for an independent corroboration to the testimony of the complainant who is more or less in the capacity of a accomplish when offering a bribe to the public servant. Though it can be said that it is a rule of prudence to seek for such corroboration, still many times in plethora of judgments the Hon ble Apex Court has reiterated this view and many such decisions are cited before the Court on behalf of the respondent by the learned Advocate. The Said decision are :- (1) Gurcharan Singh v. State of Haryana, 1994 Cri.L.J. 1710 (2) Som Prakash v. State of Punjab, 1992 Cri.L.J.490 (3) M.G.Thatte v. State of Maharashtra, 1993 Cri.L.J. 2878 (4) Mohar Singh v. State of Rajasthan, 1992 Cri.L.J. 449. 12. Apart from the above citations, reliance is also placed on the following authority i.e. A.I.R. 2006 S C 836 12 (T. Subramanian v. The State of T.N.) to advance the argument that the prosecution has to establish its case beyond reasonable doubt. Shelter of the another authority i.e. A.I.R. 2002 S C 486 (Punjabrao v. state of Maharashtra) is taken to substantiate that defence has to establish its case by preponderance of probability i.e.,the standard of proof required to be established is not that much high which is required for establishment of the case of the prosecution. 13. While arguing on behalf of the respondent- accused, it is submitted that the defence of the respondent is required to be accepted as has been done by the Trial Court as to the possible explanation given by him for apparently finding of Anthracene powder on his hands. This Court has carefully gone through the reasoning given by the Trial Court and extensively discussed in the impugned judgment and order. Moreover, it is also observed that admittedly, during the trap procedure respondent-accused has left his cabin and went outside and according to his defence, allegedly, at this moment complainant had kept the bribe amount in his brief case and that there was nothing like acceptance of tainted amount Rs.500/- and himself keeping it in his brief case. 14. On careful scrutiny of the reasoning given by the 13 Trial Court and considering the admitted position as narrated above and considering the substantive evidence of panch witness P.W.No.2 as to not hearing the conversation, it must be said that the case of the prosecution as narrated by the complainant was not accepted as trustworthy, by the Trial Court and this Court do not find any reason to interfere with such observation. This is, more so, when on a given set of circumstances as in the present case, when two views are possible, the view which has already been accepted by the Trial Court and which is giving benefit to the accused, is required to be maintained. In other words, considering the cumulative effect of the case of the prosecution and still considering certain answers given by the respondent-accused as pointed out by the learned A.P.P.,for the State, there is nothing to view the matter differently and there is nothing to interfere with the impugned judgment and order of the acquittal. Hence, the present criminal appeal is disposed of. Hence, the following order. ORDER Criminal Appeal No. 310 of 1991 is hereby dismissed. Bail bonds of the accused-respondent, if any, stand cancelled. (A.R.JOSHI,J) 14 15