1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 202 OF 1994 Narayan Jagannath Suryawanshi ... Appellant. Vs. The State of Maharashtra ... Respondent Mr. Chari with Mr. Unnikrishnan for appellant. Mr. A. S. Shitole A. P. P. for respondent CORAM : A. S. AGUIAR J. Date : August 5, 2004 ORAL JUDGMENT: 1. This appeal is from the Judgment and order dated 15.2.1994 passed by the Special Judge, Greater Bombay, under the Prevention of Corruption Act, whereby the appellant has been 2 convicted for the offence under section 161 of IPC., equivalent to section 7 of the Prevention of Corruption Act and section 5(2) of the Prevention of Corruption Act, 1947 equivalent to section 13(1)(d) and 13(2) of the Prevention of Corruption Act. By the said order the accused is sentenced to suffer S.I. for one year and to pay a fine of Rs.1000/- and in default of payment of fine to undergo S.I. for three months on both the counts. Both the sentences are directed to run concurrently. 2. The appellant /accused, a public servant, is alleged to have demanded and accepted bribe some time in the year 1987-88 as a reward and / or by way of illegal gratification for an official act. The appellant / accused was an employee with the BEST Undertaking as a fore-man in the lubrication section of the Engineering Department of BEST. The complainant PW. 1 Mukesh Bhalaria is the sole proprietor of Messrs D. R. Traders, supplying electrical goods, chemicals, oil proof papers to various Government and semi Government concerns, including BEST. On the date of the offence P. W. 6 Sharad Ganesh Date, 3 was the immediate superior of the accused, being the Assistant Engineer (General), in the Lubrication section, Transportation and Engineering Department of the BEST. The said Sharad was serving in the said post from June 1983. In all there were fifteen members of the staff working under him, consisting of one General Foreman, two shop recorders, two laboratory assistants, one greaser, two shunters and six cleaners. 3. Whenever the BEST is in need of material it purchases the same after issue of tenders. The suppliers file their tenders in the requisite forms with the sample of the material with the Stores Department, which in turn sends the said sample to the Lubrication section for testing the quality of the material. After carrying out the necessary tests the said section sends its report to the Inspection department. On receipt of the report the Inspection Department forwards its report based on the communication received about the feasibility to otherwise of the sample to the Tender Committee for accepting or rejecting the tenders. In the event of the acceptance of the tenders the 4 Stores Department places the order with the person whose tender had been accepted for supplying the material. The supplier thereafter would supply the material in bulk as ordered. The Stores Department after receipt of the material in bulk quantity in turn would inform the Inspection Department which in turn sends a memo to the laboratory for test. The Laboratory Assistant then visits the Stores Department and collects the samples which are again tested to ascertain that the bulk supplies are as per the specifications. If the samples are as per specifications an endorsement okaying the said sample will be made on the inspection memo and a tick mark would be made on the inspection memo against the column ' acceptable in full' . The Inspection Department on receipt of the endorsement would prepare a separate letter and, inform the Stores Department that the material is accepted in full. In the event of the sample from the bulk supplies being found not according to the specifications, tick mark would be put against the column 'rejected in full' and would be forwarded to the Inspection Department, which would send a letter to the tenderer 5 mentioning that the sample was rejected and the reasons therefor. Thereafter the supplier would either replace the rejected material with fresh supplies or get a request from the Stores Department to get the material retested. Where the material is replaced with fresh supplies the same procedure a stated above would have to be undergone, viz., intimation from the Stores Department to the laboratory for carrying out the test, the laboratory deputing an assistant to collect the sample, getting the sample examined, communicating its result to the Inspection Department etc. Where the material was directed to be retested the Stores Department had to request the Inspection Department to get the material retested, which in turn would ask the Laboratory to retest the material and communicate its result to the Inspection Department. 4. After receipt of the supplies a cheque for the bulk supplies would be handed over to the party concerned as per the conditions of the tender. The supplies will be physically checked and if found to tally with the numbers mentioned in the 6 delivery challan the Stores Received Note (SRN) would be sent to the party concerned. If any shortage is found the party would be informed accordingly to make good the short supply. 5. In the present case the material supplied is oil proof paper sheets used for automobiles. A tender was floated on 10.3.87 for the supply of 6400 oil proof paper sheets. M/s. D.R. Traders of which the complainant is the sole proprietor submitted, the tender forms along with two samples to the Stores. The tender was accepted and order (exhibit 18) was placed on 27.5.1987 for supply of 1500 sheets of oil proof paper sheets. Accordingly M/s. D.R. Traders supplied 1500 sheets through the delivery challan (exhibit 19). However, by letter dated 31.8.87 (exhibit 20) the Stores Department of the BEST informed M/s. D.R. Traders that the material was rejected for the reasons set out therein. M/s. D.R. Traders challenged the said rejection report through its letter dated 7.9.87 (exhibit 21), contending that the material supplied was of the same brand and quality which was approved by the BEST while accepting 7 the tender. By letter dated 26.10.1987 (exhibit 22), the Assistant Controller of Stores, informed M/s. D.R. Traders that the material was retested and it failed in breaking strength and was not as per the sample approved. Thereafter the complainant P.W. 1 met one Mr. Khilnani of the Stores Receiving Department at Wadala who was known to the complainant. As advised by Mr. Khilnani the complainant sometime in November 1987 visited the Oil Testing Laboratory at Wadala and met the accused who told him that he was Mr. Suryawanshi and in charge of the testing laboratory. The accused Mr. Suryawanshi told the complainant to bring two fresh samples. Accordingly on 25.11.87 the complainant gave two more samples of oil proof paper sheets along with covering letter dated 25.11.1987 (exhibit 23) addressed to the Assistant Engineer (General) requesting that the samples be tested so as to enable him to replace the rejected bulk supply. After looking at the samples the accused told the complainant that he would pass the samples. On the same day i.e. on 25.11.87 the accused visited M/s. D.R. Traders and told the complainant that 8 if he paid Rs.500/- he would okay the two fresh samples and also pass the material that would be replaced. After some discussions he agreed to reduce the amount to Rs.150/- which the complainant handed over to the accused. Thereafter fresh samples were approved and the complainant replaced the rejected material with fresh stocks. It may be noted here that according to the complainant the rejected bulk quantity as well as fresh supplies were of one and the same quality and as per the specifications of the BEST. 6. On 12.1.1988 the BEST floated another tender for supply of 11000 sheets of oil proof paper. The complainant submitted his tender along with the requisite samples. It appears that the tender was opened on the same day. About fifteen to twenty days thereafter the accused telephoned the complainant and told him that if he paid Rs.5000/- he would pass the samples. The complainant refused to make any payment. The accused threatened the complainant on phone that he would reject the samples if he did not pay him Rs.5000/-. Thereupon the 9 complainant told the accused that he should first pass the samples and only then he would concede to his demand. 7. Sometime in the first week of February, 1988, the accused visited the office of M/s. D.R. Traders and informed the complainant that he had passed the two samples and that he should pay him Rs.5000/-. Thereupon the complainant told him that unless he obtained the purchase order from the BEST he would not pay him the money. On 26.3.88 the complainant received a letter dated 22.3.88 (Exhibit 26) from the Superintendent of Stores and Purchase informing him that his tender was accepted and that BEST has placed the advance payment purchase order Exhibit 27 dated 15.4.1988 with M/s. D.R. Traders for the supply of 11000 sheets of oil proof paper vide delivery challan exhibit 28 dated 27.4.1988. On 20.4.88, the date on which the order exhibit 27 was received, the accused visited the office of M/s. D.R. Traders and met the complainant and demanded Rs.5000/-. However, the complainant told him that the amount was excessive. After 10 some bargaining the amount was scaled down to Rs.1500/-. The complainant told the accused that he would pay the amount only after he received the cheque of Rs.48,400/- for the supply of the said material. When the bulk supplied was checked it was found to be short of 75 sheets this was made good by the supplier on 2.5.1988, through delivery challan exhibit 29. Two-three days thereafter the complainant received the cheque for Rs.48,400/- from the BEST. The accused telephoned the complainant and informed that he had passed the material and would come to collect the amount of Rs.1500/-. However, the complainant told the accused that he did not have the money and that the accused should come after 15 to 20 days. On 24.5.1988 the accused telephoned the complainant but the complainant told him that he did not have money on that day and he should contact him on phone on 27.5.1988. Accordingly on 27.5.1988 at about 12 noon the accused again telephoned at the office of M/s. D.R. Traders 11 when Miss Bhargavi Vaidhya, the Secretary of the complainant, told him that the complainant was not in the office and that he should phone later on at about 4 p.m. Accordingly at about 4 p.m. on the same day the accused again telephoned the complainant and told him that he would come to the office to collect Rs.1500/-. The complainant asked him to reconsider the demand. The accused refused to do so. Hence the complainant told the accused to come on the next day i.e. on 28.5.88 between 4.30 to 5 p.m. to collect the amount of Rs.1500/-. At about 1 p.m. , on 27.5.1988 the complainant went to the ACB office and lodged his complaint (exhibit 30) with P. I. Arthur which was registered at Crime No. 14/88 and the complainant was directed to visit the ACB office again on 28.5.1988 at about 2.00 p.m. for laying the trap. 8. On 28.5.1988 P.I. Arthur called for panchas and made all the necessary arrangements for laying a trap. He also gave necessary instructions to the complainant and the panchas. The use and effects of anthracene powder was demonstrated to the 12 panchas. All the aforesaid facts pertaining to the trap were recorded in the pre-trap panchanama, exhibit 36. Pursuant thereto the complainant and the raiding party with the panchas first went to the office of the complainant at about 3.50 p.m. Only the complainant P.W. 1 Mukesh Bhalaria and panch P.W. 2 Majgaonkar went to the office of M/s. D.R. Traders. Rest of the raiding party stationed themselves near the Harkisandas Hospital. At about 4.40 p.m. the accused came on the 2nd floor of the building and took a round and went down and waited at the entrance of the building for about 15-20 minutes. At about 5 p.m. he came to the 2nd floor and entered the office of M/s. D.R. Traders and occupied the seat in front of the complainant. Thereafter the following conversation took place between the complainant and the accused: “ Complainant – KYA SAAB KITNA TIME LAGAYA accused – AISA HI THODA TIME LAG GAYA complainant – AP BAHAR GAVSE KABHI AYE accused – PANDHRA DIN BAHAR GAV GAYA THA, APKO MANGALVARKO PHONE KIYA, TABHI AYA NICHE 13 CHALENGE. Complainant - MAI STATUS CHHODKE NAHI ATA HUN (Looking at the Panch) Kyo Majgaonkar AAB, BARABAR HAI NA. Panch – HA, HA THIK HAI Complainant : TOTAL ORDER KA VALUE Rs. 48,400/- HAI APNE KITNA DEMAND KIYA THA. Accused : Rs.1500/- (At this stage complainant takes out his calculator and calculate and said “FORTY EIGHT THOUSAND FOUR HUNDRED – Ka TIN PERCENT 1452/- HOTA HAI. Accused : PACHAS RUPAYE ME KYA RAKHA HAI, PANDHARA SO RUPAYE DEDO.” 9. The complainant then took out the wad of currency notes with his right hand from his chest pocket of his bush shirt and extended his right hand towards the accused across the table saying in Hindi “Ginke Lelo”. The accused accepted the wad of the currency notes in his right hand and transferred it to his left 14 hand. He then took out his handkerchief from his pant pocket and put it on the wad which was in his left hand. The complainant then got up under the pretext of ordering coffee and gave the pre-arranged signal. Immediately thereupon the raiding party came to the office. The accused was apprehended by two police constables who caught hold of both his hands. Thereafter the accused dropped the wad of currency notes and the handkerchief on to the floor. The raiding party carried out the necessary tests. An ultra violet lamp was brought in and the hands and clothes of the accused were examined. Bluish glow was seen on the tips of all the fingers of his right hand and also on all the phalanges of all the fingers, thumb, on the palm of his left hand, on the tip of the nose, mustaches, both eye-brows and on the front portion of the neck of the accused. All the aforesaid facts were recorded in the post-trap panchanama (exhibit 37), which concluded at about 7.15 p.m. After recording the statement of the witnesses including that of the complainant and obtaining sanction (exhibit 44) to prosecute the accused from the competent authority, i.e. the General Manager of the BEST 15 charge sheet came to be filed in the Court of the Special Judge for offence under Section 161 I.P.C. and 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947. 10.In the course of the trial, the charge at Exhibit 6 was framed. Distinctive charge was framed for the demand of Rs.500/- and acceptance of Rs.150/- on 25.11.87, the demand of Rs.5000/- in the third week of January 1988, the demand of Rs.5000/- in February 1988, the demand of Rs.5000/- in April 1988 and after negotiations showing willingness to accept Rs.1500/-, the demand of Rs.1500/- on first or second of May 1988, the demand of Rs.1500/- on 24.5.1988, the demand of Rs.1500/- on 27.5.1988 and the demand and acceptance of Rs.1500/- on 28.5.1988. All the aforesaid acts being offences punishable under Section 161 of the IPC, distinctive charges were framed in respect of each act. An additional charge for the offence of criminal misconduct on 25.11.87 within the meaning of section 5 (1)(d) in which the accused is alleged to have obtained for himself an amount of Rs.150/-, a pecuniary advantage, by 16 corrupt or illegal means or by otherwise abusing his position as a public servant, an offence punishable under Section 5(2) of the Prevention of Corruption Act 1947 was also framed. So also, a distinct charge has been framed for committing the offence of criminal misconduct within the meaning of section 5 (1)(d) as the accused is alleged to have obtained for himself a sum of Rs.1500/- on 28.5.1988 from the complainant by corrupt or illegal mens or otherwise abusing his position as public servant, an offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947. The charges were explained to the accused who denied his guilt and claimed to be tried. The accused in his 313 statement admitted that during the relevant period he was serving as a foreman in the lubrication section of Engineering Department at Dadar Workshop and therefore a public servant. He also admits that as a Foreman he was exclusively entrusted with the testing of Oil Proof paper , lubricants, liquid soaps, detergents and tarpaulin. He has no knowledge about the ownership of M/s. D.R. Traders. He claims that for the first time he came to know 17 about the office of M/s. D.R. Traders on 28.5.1988 after the trap. He has no knowledge about the acceptance of the tender of M/s. D.R. Traders, for the supply of the oil proof papers. He states that he had tested the samples from out of the supplies of oil proof papers, but he had no knowledge if the said sample was from out of the material supplied by M/s. D.R. Traders. He has no knowledge regarding communication between M/s. D.R. Traders and the Stores Department relating to the rejection of the material and subsequent supplies. 11.It is the defence of the accused that the complainant P.W. 1 Mukesh Bhalaria attempted to plant the amount in his person as set out by him in answer to question no. 114 in his statement under Section 313 Cr. P. C. 12.In support of its case the prosecution has in all examined 6 witnesses. The complainant P.W. 1 Mukesh Bhalaria is the sole proprietor of M/s. D.R. Traders. The entire prosecution case is based on his testimony and FIR (exhibit 30). P.W. 18 ____P.I. Arthur is the Investigating Officer who carried out the investigation and also made necessary arrangements for the trap and drew pre-trap panchanama and post trap panchanama. P.W. 2 Majgaonkar is the panch to the alleged incident of demand and acceptance of the bribe amount on the day of the trap in the office of M/s. D.R. Traders while PW 3 Miss Bhargavi Vaidya is the employee of the complainant who has also testified to the visit of the accused and that the accused had telephoned the office of the M/s. D.R. Traders on 27.5.88 as well as the visit of the accused to the said office and demand and acceptance of bribe amount of RS.1500/- in the office of M/s. D.R. Traders. 13.The learned Special Judge relying on the testimony of the complainant which have been corroborated by that of the panch P.W. 2 as well as by Miss Vaidya, an employee of the complainant has accordingly convicted the accused of the said offences with which he was charged. 19 14.The accused has challenged his conviction and has denied his guilt and claims that he has been falsely implicated by the complainant. Learned advocate Mr. Chari, arguing on behalf of the accused has submitted that the conviction could not have been based on the sole testimony of the complainant as his testimony has to be read as that of an accomplice and therefore require corroboration as held by the Supreme Court in the case of Pannalal Damodar Rathi vs. State reported in AIR 1979 S.C. 1191. 15.It is contended that certain specific features of the complainant' s evidence are lacking in corroboration and therefore the complainant's story does not make out a water tight case against the accused. It is pointed out by Ld. advocate for the accused that the complainant is not a newcomer to the BEST as he has been supplying various items in the past. Admittedly there were no officers in the BEST who were adverse to him or to his interest and further he had no reason to doubt the integrity of the Assistant Engineer (General), or the 20 Deputy Chief Engineer (Transport) within whose jurisdiction the supply of oil proof papers would fall and that since the appellant / accused was only employed as a foreman in the Engineering Department of BEST and was not even an officer he was not in a position to make demands for bribe or for passing the samples or accepting the bulk supplies or rejecting the same. In fact had such demands been made by the accused there is no reason why the complainant did not approach any higher officer and apprise him of the demand for bribe or of the acceptance of Rs.150/- or of the continued demand of Rs.1500/- as bribe. It is pointed out that though the complainant went to one Mr. Jadhav of Stores Department and complained that his materials were unjustly rejected he did not complain about the demands made by the accused, though he knew that Assistant Engineer (General) was in charge of the testing laboratory nor did he complain to the Deputy Chief Engineer (Transport). In fact the complainant did not tell anyone about the bribe till lodging of the complaint with ACB on 27.5.1988. It is therefore the contention of the learned advocate 21 for the accused that the testimony of the complainant is inherently weak and by itself is not sufficient to convict the accused without corroboration. 16.Further it is pointed out that the demand for Rs.5,000/- later scaled down to Rs.1,500/- was made after the 2nd tender was accepted and sample passed and the bulk supplies accepted and passed and money paid. It was only thereafter that the accused made his demand for of Rs.5000/-. It is pointed out that in the normal course when the bulk supplies were approved and accepted the tenderer would normally get the Stores Receipt Note (SRN) and that was the indicator of the acceptance of the material and that unless the said SRN was received the tenderer would not know whether the bulk supply was approved or not. However, in this case the complainant did not enquire with the Stores Department if it had issued the SRN and in fact the complainant admits that the SRN of 11000 sheets was not sent to him by the BEST. It is thus contended that there is a serious doubt as to the genuineness of the complaint in view of 22 the fact that the complainant has alleged that the demand was made after payment for the bulk supplies was made to the complainant. 17.The story of the complainant is doubted in view of the following: The complainant claims that since the sample submitted by him was not found acceptable he contacted one Khilnani who was in charge of the stores Department. The said Khilnani advised him to visit the oil testing laboratory. It is pointed out that the prosecution has not led any evidence to establish as to who this Khilnani is and whether he was in fact an employee of BEST. Although the prosecution has examined the General Manager BEST P.W. 4 Mr. Mitbandar, and the Assistant Engineer (General ) Shri Date (PW 6) they are silent as to the existence of Mr. Khilnani. It is contended that if in fact the said Khilnani had advised the complainant to visit the oil testing laboratory then the said Khilnani ought to have been examined to establish this fact especially in view of the policy of the BEST which discourages disgruntled suppliers from visiting the laboratory as 23 has been testified by the P.W. 4 General Manager of the BEST. According to the defence the complainant's story of his visit to the oil testing laboratory cannot be accepted on its own without corroboration. 18.I am afraid I cannot agree with the submissions made by the learned advocate for the appellant /accused. In relation to the demand and acceptance of Rs.150/- at the