1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 510 OF 2009 Gopal s/o Nagnathrao Gunjkar, Aged 50 years, Occupation Service, Resident of Shri Nagar, Nanded, Taluka and District Nanded Appellant V E R S U S The State of Maharashtra Respondent Mr. Joydeep Chatterjee, Advocate holding for Mr. Amol Sawant, Advocate for the petitioner Mr. V.D. Rakh, A.P.P. for the State WITH CRIMINAL APPEAL NO. 509 OF 2009 Dnyaneshwar s/o Rambhau Khokle, Aged 49 years, Occupation Service, Resident of Lokmanya Nagar, Parbhani, District Parbhani Appellant V E R S U S The State of Maharashtra Respondent Mr. V.N. Damle and Mr. H.P. Pawar, Advocates for Appellants Mr. V.D. Rakh, A.P.P. for the State CORAM : A.V. NIRGUDE, J. DATED : 19th April, 2010 2 J U D G M E N T 1. Both these Criminal Appeals arise from the Judgment and order passed by the learned Special Judge, Hingoli, in Special Case No. 02 of 2007, convicting both the appellants for offences punishable under Section 7, 13 (i) (d) read with Section 13 (2) and Section 12 of the Prevention of Corruption Act (henceforth referred as “the Act”. So these two Criminal Appeals can be decided by this common Judgment. The appellant Gopal s/o Nagnathrao Gunjkar, in Criminal Appeal No. 510 of 2009, was accused No.1, and, Dnyaneshwar s/o Rambhau Khokale, in Criminal Appeal No. 509 of 2009, was accused No.2 in Special Case No. 02 of 2007. Therefore, hereinafter, appellant Gopal s/o Nagnathrao Gunjakar is referred as appellant No. 1, whereas appellant Dnyaneshwar s/o Rambhau Khokale is referred as appellant No.2, for the sake convenience. The prosecution case, in short, can be stated as under : 2. The prosecution witness No. 1 Balaji, the complainant had sought permission from the Forest Department to transport certain logs of teak trees, which he had cut in his agricultural field. The file concerning his permission was pending before the appellant No. 1, who was then Assistant Conservator of Forest at Hingoli. A week prior to the complaint, he had an occasion to meet the appellant 3 No. 1 in his office. At that time, the appellant No. 1 demanded Rs. 7,000/-, as bribe, for recommending favourable order on his file. On 17th April, 2006, the complainant and the appellant No. 1 had a telephonic talk, and the complainant agreed to come and pay Rs. 7,000/- to the appellant No. 1 on the next day. The complainant, thereafter, lodged his complaint with the A.C.B. Office, at Parbhani. A trap was arranged on 18th April, 2006. The complainant and a shadow panch reached with the tainted currency notes of Rs.7,000/- kept in the pocket of the complainant at the office of appellant No. 1. On reaching the office, the complainant met the appellant No. 2 at the office. The complainant knew the appellant No. 2 since prior to that day. The complainant, the shadow panch and the appellant No. 2 then went to the office of appellant No. 1. He then asked them to wait for 10 minutes. After 10 minutes, the above mentioned three persons again entered the office of the appellant No. 1, when the appellant No. 1 asked the complainant, whether he had brought the money. The complainant answered in affirmative. The appellant No. 1 then asked the complainant to hand over the money to the appellant No. 2. Accordingly, the three persons mentioned above, came out of the office of appellant No. 1, and, in the passage outside the office, the complainant handed over the tainted currency notes to the appellant No. 2, who accepting the amount and kept them in his shirt pocket. Immediately thereafter, the raiding officers of A.C.B. rushed and 4 caught both the appellants. The investigation was completed and the charge-sheet was sent. 3. The learned Judge of the lower Court believed the case of the prosecution, and as said above, convicted both the appellants. 4. Having heard the submissions of the learned Advocates appearing for the parties and having gone through the record of the case, following questions arose for my consideration : (1) Whether the prosecution could prove that the appellant No.1 demanded and accepted the bribe of Rs.7,000/- ? (2) Whether the prosecution could prove that the appellant No. 2 had knowledge about the appellant No.1’s demand of illegal gratification from the complainant ? (3) If the answer is in the negative, whether the appellant No. 2 can be convicted under Section 12 of the Act ? (4) Whether the sanction for prosecution of the appellants was valid ? 5. The prosecution case is based on depositions of seven prosecution witnesses. The prosecution witness No.1 is the complainant and his deposition is very important. So also, the deposition of the prosecution witness No. 3, the shadow panch is equally important. The prosecution witness No.5 is the Deputy Secretary, Revenue and Forest Department, who recorded his 5 deposition for the purpose of proving the sanction for prosecution. The prosecution witnesses No. 4, 6 and 7 are the officers of Anti Corruption Bureau. 6. The prosecution witness No.1, the complainant, stated before the Court that he had teak wood trees in his agricultural field, and that, he had intention to cut the trees and sell them. In order to get permission to cut and transport the logs of teak trees, he had filed an application to the Forest Department. He said, the officers of Forest Department had visited his field, inspected the trees and then marked 95 teak trees suitably for felling. Accordingly, he said, he had cut those trees, and, he then filed application to the Forest Department for permission to transport the logs. He said, he waited for many days for receiving such permission, but in vain. So, he went to the Forest Office for enquiry, where he was told that his file had gone to Hingoli office. He said, he came to Forest Office at Hingoli, and on two or three times, he could not meet the appellant No. 1, who was then working as Assistant Conservator of Forest. Lastly, he ultimately succeeded in meeting him. He said, the appellant No. 1 demanded Rs.7,000/- as bribe for giving permission. He said, he agreed to pay the amount, but was not willing to pay the amount. He said, he went to Anti Corruption Bureau office at Parbhani and lodged his complaint. He then said that he made a phone call to appellant No. 1 on his mobile phone. He said, he told the appellant No. 1 that 6 he had arranged the funds and would meet him at Hingoli Forest Office. To this, he said, the appellant No. 1 asked him to reach his office between 10.00 to 12.00 a. m. He said, he informed this fact to the Anti Corruption Bureau officer, who in turn asked him to reach the Anti Corruption Bureau office on next day between 07.30 to 08.00 a. m. He said, accordingly, he reached Anti Corruption Bureau office on 18th at 07.30 a. m. He then narrated as to what formalities the Anti Corruption Bureau officers made for the purpose of laying a trap. He said, the currency notes of Rs.7,000/- were dusted with invisible chemical etc. He said, at about 10.30, he and the raiding party left Parbhani, and at about 12.30, they all reached at Hingoli. He then said that he and the shadow panch then walked up to the Forest Office. He said that before he could enter the office of appellant No. 1, he and shadow panch met the appellant No. 2 in the outer room of the office. He said, he, the shadow panch and the appellant No. 2 then went inside the room of appellant No. 1. He said, he asked the appellant No. 2 about his file. He said, the appellant No. 1 in turn asked him to wait for 10 minutes outside his room, and he assured that he would give him the file. He said, 10 minutes later, they all again went inside the appellant No. 1’s room when he asked them to sit in the chairs. He said, he told the appellant No. 1 that he had brought the amount. He said, the appellant No. 1 then asked him to go outside and give the amount to the appellant No. 2. He said, he 7 came out and handed over the amount to the appellant No.2. He said, after taking the tainted notes in the hand, the appellant No. 2 started counting them. He said, he immediately gave a signal to the raiding party. When he came back to the appellant No. 2, he saw, the appellant No. 2 was putting the amount in his shirt pocket. He said, the trap party came inside the room. One of the officers of Anti Corruption Bureau, he said, caught the appellant No. 2. Thereafter, the Anti Corruption Bureau officers, he said, disclosed their identity and the purpose of their visit. He said, thereafter, the officers of Anti Corruption Bureau arranged to see the currency notes in ultra violet rays. The anthrasene power was seen on the fingers and also on the shirt pocket of the appellant No. 2. 7. The prosecution witness No. 3, the shadow panch has given more or less same narration. He said, he was asked to work as shadow panch. He said, that on 17.04.2006 he was called at A.C.B. office, and as per the direction of officers of A.C.B., he came back to the office in the morning of 18th April. He said, he saw the complaint. He said, he also saw the complainant. He then narrated as to how the formalities for the trap were carried out. He said, he then reached Hingoli along with raiding party and the complainant. He said, as per the instructions of A.C.B., he and the complainant entered the forest office at Hingoli. He said, they met the appellant No. 2 at the office. He said, the complainant made inquiry with the appellant No. 2 about 8 the appellant No.1. He said, thereafter, the appellant No. 2 took them to the appellant No. 1’s office. He said, the appellant No.1 was present in the office. He said, the complainant made inquiry with appellant No. 1 about his file. He said, the appellant No. 1 then asked them to wait outside for 15-20 minutes. He said, he, the appellant No. 2 and the complainant, then went to another room. He said, after 15-20 minutes, they again went to the office of appellant No. 1. he said, the complainant, at that time, told to the appellant No. 1 that he had come to his office as per the previous day’s talk. He said, the appellant No. 1 made inquiry about him with the complainant, and he said, he told the appellant No. 1 that he was the complainant’s relative. He said, the appellant No. 1 told to them that 'as per the previous day’s talk they should go to appellant No. 2'. He said, thereafter, he, the complainant and the appellant No. 2 went to the passage outside the office of the appellant No.1. He said, at that time, the appellant No. 2 asked the complainant, as to whether he had brought the money. He said, the complainant there upon took out the amount and handed over it to the appellant No. 2. After delivery of the currency notes, he said, the raiding party came to the spot. The officer of A.C.B. asked him as to who had accepted the amount. He said, he told him that it was the appellant No. 2 who had accepted the amount. He said, thereafter, the appellant No. 2 handed over the tainted currency notes to the A.C.B. officer. He then said, that the 9 A.C.B. officers inspected the tainted currency notes, the appellant No. 2’s fingers and the appellant No. 2’s pant pocket in ultra violet lamp and detected anthrasene power on them. 8. The prosecution case thus depends on the above quoted narrations of these two prosecution witnesses. One has, therefore, to examine the depositions of these two witnesses carefully to find out as to whether the appellant No. 1 had demanded Rs.7000/- as bribe from the complainant. 9. Let me first examine the evidence in respect of the meeting of the complainant and the appellant No. 1 that took place a week prior to the date of trap. On this point, there is only uncorroborated deposition of the complainant on record. However, if one peruses the cross-examination of this witness on this point, the cross-examiner of appellant No. 1 brought on record the details of the meeting, which were earlier not brought on record. In the cross- examination, the complainant stated that he made inquiry at Forest Office at Parbhani about his file, and he learned that his file had gone to Hingoli Office. In the cross-examination, he reiterated that thereafter he visited Forest Office at Hingoli. He said, he went to the Forest Office for 3-4 times, but still he could not meet the appellant No.1. In the cross-examination, this witness further admitted that he was not acquainted with the appellant No.1 and that he had made inquiry about the appellant No.1 with the Peon and Clerks of the 10 office. He then narrated the details of the meeting. He said, when he went to the office of the appellant No.1, he noticed, a Clerk using typewriter machine in the outer room. He said, he asked the clerk, as to whether the appellant No.1 was present in the office. He said, the clerk answered in affirmative. He also said that this was his first meeting with the appellant No.1, and during first meeting itself, the appellant No.1 demanded bribe. With this cross-examination coming on record, there is no need for further corroboration to the fact that a week before the trap, the appellant No.1 had demanded Rs.7,000/- from the complainant. 10. Let me now examine, as to what happened on 17th April, before and after the complaint was lodged. The complainant stated that he lodged his complaint to Anti Corruption Bureau Parbhani on 17th April. He said, after lodging of the complaint, he made a phone call to the appellant No.1 on his mobile phone, and informed him, that he had arranged the funds and would meet him on the next day. In the cross-examination, he admitted that he lodged his complaint between 11.30 a. m. to 12.00 noon on 17th April. It has come on record that at about 02.00 p.m., there occurred telephonic conversation between the appellant No.1 and the complainant. It has also come on record that on that day these two persons had conversation using the mobile phone only once. The learned Advocate appearing for the appellant No.1 in this background invited 11 my attention to the contents of the complaint (Exh.24), in which the complainant had stated “on 17th April, 2006, after arranging the funds, he called the appellant No.1 on his mobile phone and got his appointment on the next day”. He said, if the complaint was lodged at about 11.30 a. m. to 12.00 mid-day, how the incident that had taken place at about 02.00 p. m. on that day would find place in the complaint? I am afraid, this argument is not available to the appellant No.1 because the contradiction on which he seeks to place reliance has not been properly proved during the cross-examination of the complainant. No doubt, in the examination-in-chief, the complainant clearly stated that after he lodged the complaint, he made phone call to the appellant No.1 and secured his time of meeting. However, the contradiction that has occurred in his deposition before the Court and the contents of the complaint has not been properly proved. The contents of the complaint cannot be read as his substantive evidence, unless the portion in the complaint is got proved as contradiction. The relevant portion of the complaint has not been proved at all. So, this contradiction is not fatal to the prosecution case. In any case, as said above, the demand made by the appellant No.1 has been amply proved. I am inclined to believe this part of the prosecution case. 11. Let me now examine the evidence about acceptance of the amount. As said above, there are two versions on record about the event that took place. Both the prosecution witnesses No. 1 and 2 12 have more or less similar version of the events. Both of them stated that when they reached the Forest Office of Hingoli on 18th April, 2006, at about 12.00 noon, they first came across the appellant No.2. From their narration, it appears that the complainant was knowing the appellant No.2 since prior to this day. However, during the brief conversion that took place between the appellant No.2 and the complainant, there was no reference to the demand of bribe and the proposed delivery of the same on that day. When for the first time, the prosecution witnesses No.1 and 2 along with the appellant No.2 went inside the appellant No.1’s office, again there was a brief conversion between the parties, the gist of which is already given above. There is concurrence between the prosecution witnesses No. 1 and 2 about the nature of conversation that took place between the complainant and the appellant No.1. Both of them said that the complainant asked the appellant No.1 about his “file”, and then, the appellant No.1 asked them to wait for 10-15 minutes outside his office. This incident, therefore, cannot be disbelieved. The prosecution witnesses No. 1 and 2 further admitted that after 10-15 minutes they and the appellant No.2 again went inside the appellant No.1’s room. There are two versions, as to what transpired then between the complainant and the appellant No.1. On one hand the complainant stated that the appellant No.1 offered them chairs, and thereafter, the complainant informed the appellant No.1 that he had 13 brought the money with him. Upon this, the appellant No.1 told him that he should give that money to the appellant No.2. On the other hand, the prosecution witness No.3, the shadow panch also stated that after 15-20 minutes they again entered the appellant No.1’s room. He said, the complainant informed the appellant No.1 that “as per the previous day’s talk, he had come”, to which the appellant No.1 replied, that “as per the yesterday’s talks, he should go to the appellant No.2”. Both of them despite of this disparity(?) in their statements, stated that after coming out of the room of appellant No.1 in the passage, the complainant handed over the tainted currency notes to the appellant No.1. Except the variance about the words that were used by the complainant and the appellant No.1, during their conversation, there is hardly any difference between the two versions. The learned Advocate appearing for the appellants asserted that the prosecution witness No.3 did not at all corroborate the complainant’s version about the demand and delivery of the amount of bribe. I am afraid, I am not inclined to accept this assertion. As said above, it is amply proved that the appellant No.1 in clear terms put forward his demand of bribe to the complainant, and thereafter, asked him to deliver the amount of bribe to the appellant No.2 who had no knowledge as to why he was chosen to receive the amount. The factum of delivery of the tainted currency notes, as per the demand of appellant No.1, is amply proved. I am, therefore, holding that the 14 prosecution prove beyond reasonable doubt that the appellant No.1 demanded and accepted the bribe. 12. Now let me turn to the case against the appellant No.2. I have discussed the facts in the earlier paragraphs, and without repeating them, it must be said that the appellant No.2, it appears, came in contact with the complainant merely by chance, on the day when the trap was laid. Though it has come on record and I am inclined to believe that the appellant No.2 had acquaintance with the complainant since prior to the day of trap, but, it cannot be said that the appellant No.2 knew about the complainant’s earlier visits to the Forest Office at Hingoli. The complainant did not depose that the appellant No.1 demanded the amount in consultation and in connivance of the appellant No.2. The entire case speaks only about the appellant No.1, his demand and the appointment between the appellant No.1 and the complainant. Non the less it is amply proved that the appellant No.2 met the complainant and the shadow panch by chance at the Forest Office, Hingoli. Let me now examine, as to whether the appellant No.2 had any talks with the appellant No.1 in respect of the work that he promised to do for the complainant. Both the important prosecution witnesses, namely, the complainant and the shadow panch, did not depose that prior to entering into the room of the appellant No.1, they had disclosed the purpose of their visit or that the appellant No.1 had demanded any gratification for sending the 15 complainant's file back to Parbhani etc. All that has come on record is, that the complainant asked the appellant No.2 as to whether the appellant No.1 is available in his office, and thereafter, these three persons entered the office of appellant No.1. Even thereafter, nothing happened between the appellant No.1 and 2. The appellant No.1 simply told the complainant that he should wait outside and he would do the needful. There is nothing on record that the complainant or the shadow panch, while they were waiting outside the office of appellant No.1, had any further talk with the appellant No.2 regarding the demand of bribe and the delivery etc. of the same. After 10-15 minutes, all the three persons went inside the room of appellant No.1, and, here, for the first time and unexpectedly, the appellant No.1 suddenly asked the complainant to hand over the money to the appellant No.2. He even mentioned that he should go out of his room and then deliver the amount to the appellant No.2. Even at that moment, the appellant No.2 had no indication about the demand and the promise to pay the bribe. He was completely in dark about the transaction between the other parties. No doubt, the appellant No.2 could have simply denied to be party to the apparently clandestine activity about delivery of the amount. He could have point blank refused to be a party to such transaction even when he was standing in front of the appellant No.1. But, this did not happen. He meekly went outside the room of the appellant No.1 and then accepted the 16 amount from the complainant. The question is, whether his action amounted to abetment to committing of the offence? The Section 107 of the Indian Penal Code defines the term “abetment of a thing”. It reads as under : 107. Abetment of a thing - A person abets the doing of a thing, who - First – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 – A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. On the face of it, the appellant No.2 did not instigate the complainant to deliver the amount. Even the second element of the definition is not seen in this case. There is no evidence on record to show that