criapl510.07 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 510/2007 Mukund Narharrao Chavare, Age : 44 years, Occu. Upper Division Clerk, M.S.E.B. (Rural), Sub Division No.1, Nanded, R/o Shahunagar, Nanded. ...Appellant. Versus State of Maharashtra, through Public Prosecutor, High Court, Bench at Aurangabad. ....Respondent. Mr. Joydeep Chatterji, Advocate for appellant Mr. T.S. Lodhe, A.P.P. for State. CORAM : A.V. NIRGUDE, J. Date : 2nd December, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and order passed by the learned Special Judge, Nanded dated 12/12/2007 convicting the appellant for the offence punishable under Section 7 of Prevention of Corruption Act and sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.3,000/- with default clause. The learned Special Judge convicted the appellant for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and further sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 4,000/- with default clause. 2 The case of the prosecution was that the appellant who was working as Upper Divisional Clerk in M.S.E.B. demanded and criapl510.07 2 accepted the bribe of Rs.600/- from the complainant promising him that he would reduce the amount of electric bill payable by the complainant. The prosecution relied upon the evidence of four witnesses. The prosecution witness No.1 is one Harjit Jadhav the Superintending Engineer, M.S.E.B. Latur who granted sanction for prosecuting appellant but I am discussing his evidence because the appellant does not challenge the sanctity and legality of the sanction order passed by this witness. The appellant’s case is that he did not demand any bribe and had not received the tainted currency notes as bribe but as the amount towards an installment of the defaulted bill payable by the complainant. 3 The complainant prosecution witness No.2 in his deposition stated that he was resident of Limbhoninagar, Mukhed and was having an electric meter at his house. He was running a flour mill at his house. He said, he could run the flour mill for about 1 ½ months. But he soon stopped it, because, he said, the electric bill was exorbitant. He said, at that time he was in arrears of Rs.6,500/- towards the electricity bill. He said, he had received said electricity bill and since he did not pay the amount, the supply was disconnected. He said, he thereafter submitted an application for reconnection of the supply and also to get reduction in the dues of electricity bill. He said, he submitted the application at the M.S.E.B. Office at Mukhed. He said, one Deshmukh received the application who told him further that he should submit the application at the office at Nanded where the appellant worked as Upper Divisional Clerk. He said, he therefore, came to the appellant’s office at Nanded. He said, he submitted the application to the appellant and he said, the appellant told him that the bill he had received was charged as per the commercial rate. He said, criapl510.07 3 the appellant suggested to him that he should get the bill changed as per the rate of residential use of electricity. He said, he therefore, went back to Mukhed and obtained an endorsement on his application from the Jr. Engineer. He said, he came back again to the appellant and showed him the application and the endorsement. He said, on perusal of the endorsement, the appellant told him that the bill was correct and he should deposit the said amount. He said, he told the appellant that he could not deposit that much amount. He said, the appellant told him to deposit at least Rs.1,000/- and then he said, the appellant assured him that he would reduce the amount of bill. He said, on negotiation the appellant told to give him Rs.800/-. He said, he showed his inability to give even that much amount. He said, he told the appellant that he had Rs.200/- with him and he said he handed over the same to the appellant. He said, the appellant asked him to bring balance of Rs.600/- within 2 – 4 days. But he said, thereafter he went to the Anti Corruption bureau, Nanded and narrated them about the incident. He said, his narration was reduced into writing. He said, on the next date the A.C.B. arranged a trap. He said, as per the instructions of the officer of the A.C.B., he and the shadow panch went to see the appellant. He said, the appellant asked him if the amount for depositing was brought. He said, he answered in affirmative. He said, the appellant then asked him as to how much amount he had brought. He said, he replied that he had brought Rs.600/-. He said, the appellant then asked him if he had brought Rs.800/-. To this, he answered that he had brought Rs.600/- only. He said, the appellant then demanded the amount and he handed over the same to the appellant. He said, the appellant accepted the amount and kept it in his shirt pocket. Thereafter, he criapl510.07 4 said signal was given. The tainted currency notes were found in shirt pocket of the appellant and his hand was found stained with anthracene powder with tainted currency notes. In the cross examination, this witness however admitted that he had received the first bill of electricity charges to the tune of Rs.6,640/-. He said, he had annexed the bill with his application. He said, he had deposited RS.2,800/- already with the M.S.E.B.. He said, this amount was not deducted from the bill amount. He said, he submitted the application for correcting the demand bill. He admitted that the appellant had made endorsement on his application as “whether the bill was commercial or residential purpose”. He said, he thereafter went to the Jr. Engineer Shri Deshmukh. He said, 6 – 8 days time was required for getting the Jr. Engineer’s endorsement on his application. He said, due to the delay, he went to the Anti Corruption bureau at Nanded on 01/02/2005 but he said the officer there, refused to take his complaint. He further admitted that thereafter he again went to the appellant, told him that the bill did not show credit of Rs.2,800/- which he had already deposited. He said, the appellant then told him that he would prepare a fresh bill. He then further admitted that the appellant after calculation found that the amount of Rs.1902/- was due from him. He said, he told the appellant that he could not deposit the said amount in one go. He said, the appellant then suggested to him that he should approach the officer and get the installment for payment of the said amount. He said, on 04/02/2005 he again went to the Jr. Engineer Shri Deshmukh and submitted an application for getting permission for paying the amount in installments. He said, he had sought installments of Rs.600/-. He said, the Jr. Engineer allowed his application and allowed him to deposit entire amount in installments of criapl510.07 5 Rs.600/-. He said, in the process, he was required to visit the officers from time to time ans got irritated. He said, so he went to the A.C.B. office on 08/02/2005 to lodge the complaint. In the cross examination, he further admitted that he handed over Rs.600/- (tainted currency notes) to the appellant saying that the Jr. Engineer had allowed the installments. He said, he demanded a receipt of Rs.600/- from the appellant. He admitted, the appellant then asked the peon to bring the receipt book. He further admitted that when the raiding party of A.C.B. came there, the appellant told them that the amount was obtained towards installments of demand bill. In view of the above mentioned narration, it is very clear that the complainant in fact had resiled from his earlier statement and allegation that the appellant had demanded bribe of Rs.800/- from him and had received Rs.200/- out of it earlier, even when he described incident of trap. He surreptitiously stated that the appellant asked him whether he had brought the amount for deposit. I checked even the Marathi version of the deposition and found that the complainant avoided to use word bribe. Thus, the complainant betrayed the prosecution while he was recording his examination in chief. But surprisingly the learned A.P.P. did not declare him hostile and / or did not seek permission of the Court to cross examine him. This further helped the appellant’s cross examiner. I have narrated the above as to how the complainant further gave admissions in favour of the appellant. The complainant in fact introduced a different story during the cross examination. He said, when he approached the appellant and told him that the credit for Rs.2,800/- was not given in the demand bill, he said, the appellant promised him to prepare a fresh and correct bill. He then introduced further that there was a suggestion from the appellant that he should criapl510.07 6 get installments for payment of bill. Apparently, this was not his case at all in the complaint. At belated stage when he had already destroyed the prosecution case, the learned A.P.P. realised that she had lost her case. She hurriedly but incorrectly used her right to re- examination for virtually cross examining the complainant. But by that time the complainant had already destroyed the prosecution case. Such cross examination during the re-examination was a futile attempt to save a sunken boat. 4 The prosecution witness No.3 the shadow panch however remained faithful to the case of the prosecution. He stated that he met the complainant at his office as per the arrangement of the trap. He said, the complainant enquired with the appellant about his bill. He said, the appellant to this asked if the complainant had paid the amount of Rs.600/-. He said, the complainant answers to the appellant in affirmative. He said, the appellant then demanded the money and the complainant handed over the tainted currency notes to the appellant. But the deposition of the shadow panch which is practically the only evidence against the appellant, can not be used for convicting the appellant. 5 In view of the judgment of Supreme Court in case Pannalal Damodar Rathi Vs. State of Maharashtra reported in AIR 1979 Supreme Court, 1191 corroboration in a case like this in all material particulars of the prosecution case is necessary and if it is lacking, the accused could entitle to the benefit of doubt. The Supreme Court in that judgment observed as under. “There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery criapl510.07 7 the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon”. 6 In view of this, the learned judge of the trial Court should have acquitted the appellant. The appeal deserves to be allowed. ORDER The appeal is allowed. The appellant stands acquitted. Bail of the appellant / accused stands cancelled. The fine amount if deposited, be refunded to the appellant. (A.V. NIRGUDE, J) ts k/ok