1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 63 OF 2008 Shri Atul Naik, Son of Madhukar Naik, Major of age, Married, service, Resident of H. No.168, Comba, Margao, Goa. .. Appellant v e r s u s State Through Public Prosecutor .. Respondent Shri Arun Bras De Sa, Advocate for the Appellant. Shri C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE: 30TH SEPTEMBER, 2009. JUDGMENT 1. This appeal has been filed by the accused who had been charged, tried, convicted and sentenced in Special Case No.2 OF 2003 by the Learned Special Judge, Margao, by Judgment dated 27.11.2008 under Section 7 and Section 13(1)(d) and (2) read with Section 13(2) of 2 the Prevention of Corruption Act, 1988. The accused has been sentenced under Section 7 of the said Act to undergo R.I. for a period of one year and to pay fine of Rs.10,000/- in default to undergo imprisonment for a term of three months and under Section 13(1)(d)(2) read with Section 13(2) to undergo R.I. for a period of one year and to pay a fine of Rs.10,000/- in default to undergo further R.I. for a period of three months. Both the sentences have been ordered to run concurrently. 2. The allegation against the accused is that on 8.10.2002 at about 5.30 p.m. at Old Market, Margao, the accused being the Secretary of the Village Panchayat of the Davorlim-Dicarpale, Salcette, Goa, and as such a public servant, demanded and accepted a bribe of Rs.10,000/- other than legal remuneration from Suraj D'Souza of Pereira Real Estate for the purpose of issuing an occupancy certificate for the construction carried out by them which was approved to be given by the Village Panchayat of which he was the Secretary, by Resolution dated 28.2.02 and thereby the accused committed an offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3 3. The accused pleaded not guilty and claimed to be tried. 4. In support of the charge prosecution examined eleven witnesses which included Pio Pereira/Pw3 of Pereira Real Estate, his employee the said Suraj D'Souza/Pw1, Ramnath Pai/Pw2 who acted as panch witness to the raid conducted by the P.I. Shri Lavu Mamledar/Pw11. 5. The case of the accused was one of denial. The accused filed a written statement to supplement his statement recorded under Section 313 of the Code (Code of Criminal Procedure, 1973). 6. The Learned Special Judge, after considering the evidence, and various submissions made on behalf of the accused, came to the conclusion that the evidence on record had borne out that the accused had made the said demand with the complainant or to put it otherwise, had accepted or agreed to obtain from the complainant gratification other than legal remuneration as a reward for doing the official act of issuance of the occupancy certificate despite the fact that the accused had earlier been notified of his transfer to another Panchayat and that it did not lay in 4 the mouth of the defence to canvass that the action of the accused to obtain or agree to obtain any gratification other than legal remuneration for himself by itself did not amount to criminal miscoduct by a public servant and that it was amply established that the tainted money was found by the police on the floor of the complainant's car when the accused was called out of the car and which would not dilute the effect of the charge proved against him. 7. Before considering the submissions made by Shri Arun Bras De Sa, Learned Counsel appearing on behalf of the accused and those of Shri Ferreira, Learned Public Prosecutor appearing on behalf of the complainant, it is necessary to record certain facts which are admitted or which in any event have got to be considered as proved beyond reasonable doubt against the accused, and they are as follows:- 1. The accused was the Secretary of the said Village Panchayat of Davorlim-Dicarpale and was transferred to Village Panchayat of Curtorim in place of Smt. Manzrekar who was relieved by the B.D.O. Smt. Mazarello/Pw9 on 3.10.02 and who reported to the Village Panchayat of Davorlim-Dicarpale on 4.10.02 but could not take a formal charge from the 5 accused as the accused did not report to the said office from 4.10.02 till the accused was arrested on 8.10.02. 2. The occupancy certificate for Mystical Rose Apartments constructed by Pw3/Pio Pereira was decided to be given by the Village Panchayat by resolution dated 22.8.02 after completing all formalities and it was the accused as the Secretary of the said Village Panchayat who had to issue it and in fact at his instructions it was prepared by Ms. Sardessai/Pw8 and handed over to him. 3. The accused met Pw1/Suraj D'Souza, the Site Engineer of the said Pereira Real Estate on 8.10.02 at about 5.30 p.m. not in the Panchayat Office or in the office of Pereira Real Estate but as agreed between them in the Old Market where the raid was conducted. 4. Both the hands of the accused when dipped in Sodium Carbonate solution, the solution had turned pink which was transferred in glass bottles, duly packed and sealed and sent to C.F.S.L. and the report obtained showed that there was phenolphthalein in it. 6 8. According to the prosecution, Pw1/Suraj D'Souza handed over cash of Rs.10,000/- to the accused and the accused accepted the same and after he gave a signal and on arrival of the police party, that the accused dropped the money inside the car. According to the accused he only shook hands with Pw1/Suraj D'Souza and went away and as he was mounting on his motorcycle that he was arrested by the police. According to the accused, the occupancy certificate could be given only after calculations were done towards the payment of house tax, water and light, but these were to be made by none other than himself. 9. Did the accused call Pw1 Suraj D'Souza to Old Market, Margao, only to shake hands with him or did he come to accept Rs.10,000/- as earlier agreed between them and indeed accepted the same? 10. Then there is Section 20 of the Act which provides for presumption that when it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case 7 may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. As regards this provision, the Constitution Bench of the Apex Court, in Dhanvantrai V/s. State of Maharashtra (AIR 1964 SC 575) has stated that the presumption, is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case, brought under section 4 (now under section 20) of the Prevention of Corruption Act and the Court has no choice in the matter once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. The presumption can be rebutted but the burden resting on the accused in such a case would not be as light as it is where a presumption is under section 114 of the Evidence Act and it cannot be discharged by mere reason of the fact that the explanation offered by the accused is reasonable and probable but it must further be shown that the explanation is true one and it has got to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man 8 would act on the supposition that it exists and unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 11. Pw3 Pio Pereira in his evidence before the Court stated that he was the Managing Partner of M/s. Pereira Real Estates and that he had undertaken construction of a low budget Housing scheme for which he had obtained necessary license from the Village Panchayat in December, 2000, and had completed the construction in July, 2002 and had submitted the file for occupancy certificate in the Village Panchayat of Davorlim-Dicarpale sometime in July, 2002. He had further stated that the Town and Country Planning Department had granted technical approval and the file was before the Panchayat and he had approached the local panch member by name Avelino Rocha who had later informed him that the file was approved and that he should meet the Panchayat Secretary for necessary follow up action and he was personally pursuing the office formalities by deputing his Site Engineer Shri Suraj D'Souza who had told him that the accused demanded money to clear the file and that he personally did not pursue the matter with the Secretary since the demand could be more from him. He stated that the said Suraj had 9 requested the Secretary to forward the file to the B.D.O. for payment of infrastructure dues and an amount of Rs.46,000/- was paid and the file was resubmitted to the Village Panchayat in the first week of September, 2007. He stated that the accused had made the demand of Rs.15,000/- from the said Suraj D'Souza and the said Suraj D'Souza had told him that he had negotiated with the accused the demand to Rs.10,000/- but he was reluctant to give the said amount as he had cleared all the necessary formalities and since there was no progress in processing his papers, he had approached the C.I.D., Crime Branch sometime in the first week of October, 2002, and was told by the officials to record the conversation between the accused and the said Suraj, and, accordingly the said Suraj had recorded the conversation between him and the accused once in his office and once between Suraj D'Souza and the accused at Old market, regarding the demand for money but he was not present at the time of the second recording. He stated that these recordings were following the complaint made by him to the Crime Branch and the said Suraj D'Souza had handed over the recording made on the micro cassette to the Crime Branch, Panaji and they were told at the Crime Branch to fix a date to hand over the money and they would lay a trap accordingly. He has also 10 stated that the money for laying the trap of Rs.10,000/- in denomination of Rs.500/- was given by him to the Crime Branch, though he was physically not present when the actual raid was conducted by the Crime Branch. He further stated that the company's Santro Car bearing registration No.GA-02-J-1738 was placed by him at the disposal of the said Suraj D'Souza to be used during the said trap. He had identified the file which was submitted to the Panchayat i.e. Exhibit 24. In cross examination he has stated that the recording of the conversation between Suraj and the accused was in his office but between them alone though he was present in the office at that time. He admitted that he was not in position to state as to who was the person whom Suraj D'Souza spoke while recording the first conversation in his office. He denied the suggestion that the call by Suraj D'Souza was made to discuss the meeting in the context of his dues outstanding from him and further denied the suggestion that the accused had not demanded money otherwise than the legal dues from the said Suraj D'Souza. 12. Pw1/Suraj D'Souza stated that he was working as the Site Engineer for the said M/s. Pereira Real Estates and he knew the accused who was working as Secretary of the Village Panchayat of Davorlim- 11 Dicarpale in the year 2002 and he used to visit the said Panchayat in connection with the official work pertaining to the said Pereira Real Estates and had submitted the file for obtaining the occupancy certificate for the construction. He further stated that the Panchayat office had referred the file to the Town Planning Authority which had given them approval and thereafter the file was placed before the Panchayat at its meeting and the Panchayat had passed a Resolution to issue necessary occupancy certificate. He further stated that he used to approach the Panchayat Secretary i.e. the accused and the accused was demanding Rs.15,000/- as bribe amount for issuing the occupancy certificate and thereafter the accused reduced the demand from Rs.15,000/- to Rs.10,000/- and he filed the complaint to the Superintendent of Police, Anti Corruption Bureau, Panaji, on 8.10.02. He further stated that before filing the said complaint he had recorded the conversation between him and the accused on two different dates i.e. on 4.10.02 and 5.10.02 in connection with the demand for the bribe, on a tape recorder and he had handed over the two tapes on which the conversation was recorded to the police at the time of filing of the complaint. 12 13. The said two micro cassettes were seized under panchanama in the presence of Pw2 Ramnath Pai and the conversation was reduced in writing which alongwith the panchanama was produced at Exhibit-16. 14. Pw1 Suraj D'Souza further stated that the first cassette contained the conversation between him and the accused and the second is a tele recording which he did from his land phone and the mobile of the accused. He further stated that after he had handed over the said two cassettes, the police heard the conversation and seized the said two cassettes under panchanama and after completing the formalities, the police party alongwith the panchanama, finger print expert and himself proceeded to Hotel Imperial at Margao on Margao-Quepem road where the second panchanama was prepared and during the second panchanama the finger print expert explained to them the procedure for the trap and he handed over Rs.10,000/- to the police to be used as bribe amount being twenty notes of Rs.500/- each and the police noted the serial numbers of the said notes in the panchanama and the finger print expert Shri S. Naik applied powder on the said currency notes of Rs.10,000/- and put them in his left side shirt pocket and before that his personal search was taken 13 and he had with him a bunch of keys, Rs.15,000/- in cash, mobile phone and another amount of Rs.970/- and he was explained the entire formality of the trap and was explained about pre-signal he was required to give, after the bribe amount was accepted by the accused, and, was told to put on the right side indicator lights after the accused accepted the bribe amount and at about 5.30 pm on that day i.e. 8.10.02 he called the accused on his mobile phone, from his mobile phone and requested the accused to contact him near Manush Bar, Old Market, immediately and the accused came near Manush Bar within ten minutes of contacting him, on his mobile. He stated that he was in Santro Car bearing said No.GA-02-J-1738 belonging to his Company and the accused on reaching that spot came and sat in his car and he asked the accused for the file whereupon the accused demanded cash of Rs.10,000/- from him and he handed over the said Rs.10,000/- to the accused in the denomination of Rs.500/- and the accused accepted the same. He stated that the said money which he had given to the accused was earlier given to him by the police and was carried in his shirt pocket. He stated that he put on the right light signal of the car, as per the instructions earlier given to him by the police, and no sooner he gave the signal the police 14 came and surrounded his vehicle and the police then called upon the accused to come out of the car at which time the accused dropped the money inside the car and the accused was trembling at that time when he came out of the vehicle and the police asked the accused for the money, and the accused in turn pointed to the money thrown by him earlier in the car. According to him, the police picked up the money from the car and also took finger print test of the accused. The finger print expert was present at the time and the police then took personal search of the accused and found about fifteen items on his person namely bunch of keys, ATM card, wallet and other articles which he did not recall and out of the fifteen items the police attached thirteen and returned two to the accused being his driving license and the wallet and the police also took his personal search and found cash of Rs.15,000/- in his trouser pocket and Rs.970/- in his wallet and an audio voice recorder and some other items which he did not recall and all the items were returned to him by the police. He stated that the police drew the sketch at the spot alongwith the panchanama which concluded at about 20.30 hours. He identified the twenty notes though he did not remember their serial numbers and other details. He also identified the other articles and so also Exhibit-24/M.O. 15 20 being the file containing the documents. In cross examination he stated that he was working for the said Pereira Constructions from the year 2002. He stated that the project comprises of three buildings but did not recall the total built up area of all the three buildings. At the relevant time, he stated, that the second building was completed and the occupancy certificate was sought in respect of the second building which had twenty four flats of single and double bedrooms. He stated that it was possible that the built up area of each of the three buildings would be 200 sq. metres but further stated that he was not aware that the rates were Rs.5 to 10 per sq. metres for issuance of the occupancy certificate. He admitted that besides his complaint Exhibit 11, no separate statement was recorded and further admitted that he had not lodged any complaint from 4th to 7th October, 2002, and for the first time he lodged complaint on 8.10.02. He denied the suggestion that he had not made a mention of the amount demanded by the accused in the complaint exhibit-11 or that the figure of Rs.10,000/- was subsequently added. He admitted that there was an overwriting in the date on the complaint but stated that was done at the same time when he wrote the complaint. He stated that he did not know whether there was any resolution adopted by the 16 Panchayat either on 22nd or 27th August, 2002. He admitted that Pw3/Mr.Pereira was present when the conversation between the accused and him was recorded on 4.10.02 and admitted that he had told the accused that he must meet him casually and the accused during the first conversation had not shown any willingness to meet him. He admitted that during the first conversation he told the accused that his employer whom he referred to as “Sir” had given Rs.5,000/- to him to be handed over to the accused. He further stated that there is no specific statement in the first conversation that the accused had demanded Rs.10,000/- for himself but there was a statement by him to bring the money on the next day. He further admitted that there is record in the said statement at his instance that he would give the money the next morning and that he would give his file to him thereafter. He further stated that he did not recall if the accused had called him in the office, in connection with the payment of license fees and further admitted that the license fees for all the three buildings worked out to be more than Rs.30,000/-. He admitted that he had told the accused that he wants the file somehow “Kashai bashen” (by all means). He further admitted that the accused had answered that he should come in the morning and that he would even 17 process the dues of the lights. He further admitted that as per the second recorded conversation, he had offered Rs.5,000/- to the accused and that he had not demanded the said amount from him. He further stated that as per the recorded conversation he had requested the accused to meet him in the evening and the accused had declined and stated that he was at Betalbatim. He further admitted that during the later part of the same evening he had called upon the accused to meet him in the Old Market and no demand was made by him during the said conversation. He further stated that the three recordings on phone between the accused and himself were done on 4.10.02 at different times and the fourth one was done on 5.10.02. He further admitted that as per the recorded conversation on 5.10.02 he had suggested to the accused that they would meet on Tuesday and when he would carry the money but there was no meeting between the accused and himself on Tuesday and earlier on 4.10.02. In further cross examination he stated that he did not recall whether there was any telephonic conversation between the accused and himself between 5th to 8th of October, 2002 and further admitted that there was no recorded telephonic conversation during the said period. He further admitted that he had contacted the accused on his mobile on 18 8.10.02 to meet in connection with the said file and the accused was not in the Panchayat office when he had called him and that he had told the accused to meet him on the said date i.e. 8th to have talks in connection with the said file. He further admitted that steps to trap the accused were all set on 8.10.02 and the accused had come with his vehicle and he with his own vehicle at the said spot, and, the trap party had parked their vehicle at a distance of 20 metres from his vehicle and the accused had not carried anything with him when he came to meet him. He further stated that they had discussion for sometime when he sat in his vehicle. He spoke to him about the file which he had not carried with him at that time and the accused then asked for money which he handed over to him. He denied the suggestion that the accused had refused to accept the money and gave it back to him and walked out of the vehicle. He repeated that he had taken the cash out of his pocket and handed it over to the accused. In further cross examination he stated that he could not recall if the glasses of his vehicle were tinted and besides two of them there was none present when the transaction took place. He further stated that he also did not recall if the glasses of the windows were drawn up. He denied the suggestion that he had dropped the money in the car. He 19 further denied the suggestion that the accused gave the money back to him knowing that he was trying to trap him. He further stated that he did not know where was the trap party, when the transaction of handing over the money to the accused took place in his