IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.854 OF 2005 Anand Abaji Bhise ] Age – 67 years ] Residing at C-7/21, ] Indiranagar, Bibvewadi ] Pune 411 037 ] .. Appellant V/s. The State of Maharashtra ] .. Respondents Mr.S.R.Chitnis, Senior Advocate with Smt.V.R.Raje, Advocate for the Appellant. Mr.D.P.Adsule, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 17TH, 2009. ORAL JUDGMENT :- Present Appeal is preferred by the Appellant original accused against the Judgment and order of conviction dated 31st August, 2005 passed by Special Judge, Kalyan, District Thane in Special Case No.4 of 1999. Earlier the Appellant accused was charged for the offences punishable under section 7 and 13(2) 13(1)(d) of Prevention of Corruption Act, 1988 (herein after referred as the said Act, in short). Accused pleaded not guilty for the charge and claimed 1 to be tried. 2. During the evidence, four prosecution witnesses were examined. P.W.1 is complainant, P.W.2 is trap panch, P.W.3 is sanctioning authority and P.W.4 is investigating officer who deposed as to various steps taken during the investigation by him, as well as by the main investigating officer Mr.Khire. P.W.4 gave his evidence as during the pendency of the matter original investigating officer Mr.Khire died. It appears that mainly finding the substantive evidence of P.W.1 and 2, as trustworthy, the learned Trial Court convicted the Appellant Accused for the offences charged. For the offences punishable under section 7 of the Act, Appellant Accused was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to suffer further rigorous imprisonment for three months for, the offences punishable under section 13(2) read with section 13(1)(d) of the said Act, Appellant Accused was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to suffer further rigorous imprisonment for three months. Substantive sentences were directed to run concurrently. The muddemal property i.e. the cash amount was returned to C.B.I. and the wrist watch was also forfeited to the Government. According to the case of the complainant said wrist watch was belonging to the accused which he kept on the bribe amount of Rs.500/- which was allegedly kept on the table in the 2 house of the accused by the complainant upon directions of the accused. 3. Being aggrieved by the impugned judgment and order, present criminal appeal came to be filed and it is disposed of today after hearing the argument of the learned counsel Shri.S.R.Chitnis for the Appellant accused, yesterday and today and also after hearing the arguments of learned A.P.P.Mr.D.P.Adsule for the State. 4. Prior to appreciating the rival arguments and mainly the arguments advanced on behalf of the Appellant accused the prosecution case unfolded before the Special Court can be narrated in short. According to the complainant P.W.1 he wanted No Objection Certificate (hereinafter referred as NOC, for short) from the Ulhasnagar Municipal Corporation (herein after referred as UMC for short) and for that purpose he had been to the Chief Officer i.e. the present accused for starting the Flour Mill at his premises. He was told that if the said work was to be get done, he has to spent an amount of Rs.1000/- by way of a bribe. After due negotiations also the amount was not reduced, however, allegedly accused accepted to get the amount from the complainant in two installments. Allegedly, said initial demand by the accused was made on 23rd January, 1989 3 Thereafter, on 24th January, 1989 a complaint was lodged before the Anti Corruption Bureau, and it was decided to lay a trap at the house of the accused on 25th January, 1989. Accordingly, after making necessary arrangement as to pre-trap panchanama, complainant and one panch witness P.W.2 attended the house of the accused at early hours on 25th January, 1989. That time arrangements were made by preparing another application for similar such flour mill NOC. Such application was prepared in the name of the panch witness and it was decided that panchas to accompany the complainant and it was told to the accused that said panch was his friend and also wanted NOC for starting a Flour Mill. 5. As per the above arrangements, complainant and panch alongwith bribe amount of Rs.500/- i.e.5 G.C.Notes of 100 each smeared with Anthracene Powder and also alongwith the application prepared for and on behalf of the panch witness as well as tape recorder for recording conversation of complainant and accused, attended the house of the accused. They were entertained and allowed to sit in the room. Though, it was admittedly decided that the complainant has to initiate the talk with the accused regarding his N.O.C. matter and regarding the bribe amount to be given to the accused, there was no such talk started by the complainant. On the contrary, the talk was raised as to the panch witness wanting N.O.C. for the purpose of Floor Mill, and such application was given to the 4 accused. According to the case of the prosecution, that time complainant communicated that he had brought what was asked and upon directions from the accused he kept the bribe amount of Rs.500 in 5 G.C. notes of Rs.100 each on the table. Also according to the prosecution, accused removed his wrist watch from his wrist and place it on said currency notes. Sensing that the transaction was over, the complainant and panch came out of the room and gave pre arranged signal to the Anti Corruption Raiding party waiting outside. Officers from Anti Corruption Branch came on the 2nd floor where the room of the accused situated. By that time, accused also came outside his room as he followed complainant and panchas when they left the room. Police and raiding party apprehended the accused and took him inside the room and thereafter necessary procedure during Anti Corruption raid was followed. The bribe amount was taken charge of from the table alongwith the wrist watch. Hands of the complainant were tested under the ultraviolet light to trace out the presence of the Anthracene powder. Also the hands of the accused were tested, and it was found that the index and middle finger of right hand of the accused had some traces of the Anthracene powder at the tip and by the side. Thereafter, accused was taken to the police station and after necessary formalities investigation was concluded and charge sheet was filed. 6. Again at the threshold certain admitted factual position is 5 required to be narrated in order to appreciate the arguments advanced on behalf of the accused so far as deficiencies in the case of the prosecution are concerned. Admittedly, the tape recorder, the application prepared for the panch witness, the wrist watch allegedly belonging to the accused were not produced and established before the Court during the trial. So far as to accept their evidential value in support of the case of the prosecution, admittedly, said tape recorder though was put on while the complainant entered the house of the accused and that admittedly said tape recorder was put off after the transaction for giving of the bribe amount was over and was taken charge of by the Police, it was never played in order to find out the conversation contended in it. Moreover, admittedly there is no any transcript of any such conversation recorded on the said tape recorder was produced before the Trial Court. Admittedly, it is not at all the case of the prosecution that said application prepared for the panch witness for obtaining N.O.C. for his Flour Mill was tested under the ultraviolet rays to find out the traces of any Anthracene powder, more so, in order to rule out the defence raised on behalf of the accused. At this juncture, it must be mentioned that it is the defence on behalf of the accused that he had handled the said application and as such there is a probable explanation given by the accused as to finding of Anthracene powder on his figure of the right hand. This aspect shall be dealt in detailed at the appropriate place here under while assessing the defence of the accused on preponderances of 6 probabilities. 7. It is also an admitted position that according to substantive evidence of P.W.Nos.1 and 2, accused never touched the bribe amount when it was kept on the table by the complainant. Still if the case of the prosecution is accepted as to two finger of the right hand of the accused shows traces of Anthracene powder, possible explanation is given on behalf of the accused, as mentioned above. Again, at this juncture it must be mentioned that in order to rule out such probable defence, there is nothing brought on record that said application was not smeared with any Anthracene powder. In fact, the prosecution evidence is lacking on this aspect. 8. Again, it is an admitted position that according to prosecution witnesses, P.W.1 and 2, there was no talk regarding demand of money by the accused on 25th January, 1989 at his house and that money was not taken by the accused in his hand and that accused did not touch the notes. This factual position is very significant to indicate that the said fact has not been appreciated in the proper manner by the Special Court while analyzing the evidence and mainly relying on the substantive evidence of P.W.Nos.1 and 2. 9. At this juncture, again it must be mentioned that the Special Court has postulated a situation as to possibility of having the 7 Anthracene powder on the finger of the accused while he putting his wrist watch on the currency notes which were kept on the table by the complainant. On this aspect as rightly argued on behalf of the accused, it must be said that there was no scope for the Special Court to come to such a hypotheses when there is no any cognate evidence as to accused touching the notes. In fact, it was for the prosecution to establish as to how said Anthracene powder was allegedly found on the figure of accused when according to its own case accused had not touched the currency notes. In the opinion of this Court, this aspect itself is very crucial and is going against the case of the prosecution. 10. Now bearing in mind the above factual position, the arguments advanced on behalf of the accused are required to be construed to ascertain whether the defence of the accused is probable on preponderance of probabilities and also to ascertain whether the prosecution had established the guilt of the accused so far as the charges framed as to acceptance and demand of bribe. Firstly, it is argued that demand of Rs.1,000/- by accused for the first time made was on 23rd January, 1989 is not proved and secondly, there was no any demand and acceptance of the bribe amount of Rs.500/- on 25th January, 1989, at the house of the accused and that such amount was planed on him by keeping it on the table when complainant and panch witnesses attended his house and the application for getting N.O.C. for the Flour Mill purported to be for the panch witness was 8 given to the accused and during that time, an amount was planed and then the signal was given to the C.B.I. Raiding party. On this aspect, again it must be mentioned that according to the case of the prosecution and as said by P.W. Nos. 1 and 2, that accused never touched the currency notes during any time of the said transaction and admittedly, when P.W.Nos.1 and 2 left his house for giving signal to the raiding party, accused also came out of his house and was standing outside and was apprehended by the police. This factual position leads to the situation that there was no possibility that even after P.W.Nos.1 and 2 leaving the house accused entered in the room and then touched the currency notes. On this aspect, the learned A.P.P. for the State during the arguments tried to argue that there was a possibility of the Anthracene powder touching the figures of the accused when accused kept his wrist watch on the currency notes which were kept in the table . On this aspect it must be mentioned that there must be a cognate evidence before the Court in order to accept that accused himself took out the wrist watch and kept it on the notes and in that process he came in contact with the Anthracene powder which was smeared on the currency notes. However, it must be said that there is no such evidence brought before the court and as such the surmises and conjectures cannot take place of the evidence when the matter is for the offence punishable under Prevention of Corruption Act, 1988, and that also for demand of acceptance of bribe amount. Again on this aspect, it is the defence on behalf of the 9 accused that it was wrist watch of the complainant himself and not of the accused. There is no record to show that it was the wrist watch put by the accused on the currency notes. 11. Another and in fact the main argument advanced on behalf of the accused is that of not producing the tape recorder conversation before the Special Court. It is again a factual position that no such cassette tape was played and not produced before the Court. When there is non production of tape recorded conversation between the complainant and the accused, it leads this court to raise the reasonable apprehension that either there was no conversation as to demand of bribe or there was some other conversation which could not have been incriminating to the accused. In that event, the argument advanced on behalf of the accused as to drawing of adverse inference as against the case of the prosecution, is required to be accepted. 12. Lastly, it is argued on behalf of the accused that there is a doubt as to whether the complainant had given his application for N.O.C. alongwith other accompanying documents to the accused by entering his office cabin on 23rd January, 1989 or whether such application was already given at the table of inward clerk situated rather away from the office of the accused. On this count attention of this Court is drawn towards Exh.54 i.e. the original application 10 alongwith accompanying documents and also Exh.54A i.e. the xerox copy of the application. The difference between the two is to the effect that the rubber stamp and acknowledgment is appearing on original application where as it is not so appearing on the xerox copy. By pointing out this it is argued on behalf of the accused and it was necessary for the prosecution to prove by authentic evidence as to how such rubber stamp appeared in the application when allegedly such application were given directly given to the accused in his cabin and not given to the inward clerk. On this aspect, by taking shelter of the Authority AIR 1954 SCC 51 Habeeb Mohammad V/s. State of Hyderabad It is further argued that it was necessary for the prosecution to examine the necessary witnesses to unfold its story. In other words it was necessary for the prosecution to examine the inward clerk as to how the said endorsement occurred on the application which was allegedly given to the accused and thereby positively establish that it was the application given to the inward clerk coming through the accused, if it was received by the accused in his cabin. 13. Apart from the above, it is also submitted on behalf of the accused that he was instrumental during his tenure as chief officer at U.M.C. for demolition of various unauthorized constructions and 11 admittedly as per the substantive evidence of prosecution witness, the premises in which the complainant wanted to install the flour mill and wanted N.O.C for that purpose was unauthorized, it was a preplanned arrangement to implicate the accused in the false case of bribery. In support of this argument, ratio propounded by following authority is taken shelter of. 2002(1) SCC 371 Punjabrao V/s.State of Maharashtra Again, on the same aspect another authority is cited as to defence of the accused as probable on preponderance of probability and mainly on aspect of demand and accept of bribe. (1996)11 SCC 720 M.K.Harshan v/s. State of Kerala. On carefully scrutinizing the substantive evidence of P.W.Nos.1 and 2 and considering the factual position as narrated above and considering the defence of the accused as to possibility of Anthracene powder appearing on his fingers and complainant putting his wrist watch on the currency notes placed on table, in the opinion of this Court, the Special Court has not appreciated said evidence in proper prospective and had fallen in an error to hold that the prosecution has proved the case of demand of acceptance of bribe by 12 the accused. In other words, it must be said that the deficiencies in the case of the prosecution as narrated above and as to the non- establishment of the application prepared for the panch witness not having any Anthracene powder and non examination of the inward clerk and mainly non production of tape recorder cassette and transcript, are vital to the case of the prosecution and consequently this factual position prompts this court to accept defence of the accused on preponderance of probability. In the result, it must be said that there is a reason to interfere with the impugned Judgment and order and the same is required to be set aside. 14. Prior to parting with the present appeal, certain observations are required to be made so far as the conduct on the part of the investigating machinery, and as to no orders passed by the Special Judge so far as certain cash amount of Rs.8,740/- seized from the house of the accused during the incident of trap. It must be mentioned that admittedly, as per the case of the prosecution said amount was taken from the house of the accused under the purported belief that it was ill gotten amount, but without there being any material to that fact. Admittedly, said amount was shown as the seized muddemal. It is factual position that Special Court while deciding the case had overlooked as to the disposal of the said amount as there is no link established by the prosecution with the said amount and the alleged offence of demand and acceptance of 13 bribe, said amount is required to be legitimately given to the Appellant when present Appeal is being allowed. Accordingly the present Appeal succeeds and it is accordingly disposed of with following order : : O R D E R :: i. Criminal Appeal is allowed. ii. Impugned Judgment and order dated 31st August, 2005 passed by Special Judge, Kalyan in Special Case No.4 of 1999, is set aside, so far as the conviction of the Appellant is concerned on all the charges framed. iii. The bail bond of Appellant shall stands cancelled. iv. If fine amount is already paid, it shall be returned back to the Appellant. The amount of Rs.8,740/- seized during the house search panchanama of the accused/Appellants shall be returned to him. (A.R. JOSHI, J.) 14