AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.288 OF 1996 Avinash Sitaram Garware, Occupation Talathi (Now suspended) Sajja Kon, Taluka Bhiwandi, District Thane, R/o. Padmavatiprasad Society, Ground floor, Room No.2, Thankarpada, Kalyan, Taluka Kalyan, District Thane. ) ) ) ) ) ) ) ... Appellant Versus State of Maharashtra. ) ... Respondent Mr. S.R. Chitnis, senior advocate i/b S.V. Kotwal for the appellant. Ms. V.R. Bhosale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI, J. DATE ON WHICH THE JUDGMENT RESERVED : 17TH SEPTEMBER, 2007. DATE ON WHICH THE JUDGMENT PRONOUNCED : 2ND NOVEMBER, 2007. JUDGMENT:- 1. The appellant (for the sake of brevity, “the accused”) was tried in the court of Special Judge, Thane in Special Case No.13 of AJN 2 1999 for offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short, “the said Act”). By the impugned judgment and order dated 14/5/1996 the learned Special Judge convicted the accused for the offence punishable under section 7 of the said Act and sentenced him to suffer RI for one year and to pay a fine of Rs.500/-, in default, to suffer further RI for three months. The accused was also convicted for offences punishable under section 13(1)(d) read with section 13(2) of the said Act and sentenced to suffer RI for one year and to pay a fine of Rs.500/-, in default, to suffer RI for further three months. Substantive sentences for both the offences were ordered to run concurrently. Being aggrieved by the said judgment and order, the accused has preferred this appeal. 2. It would be advantageous to begin with the gist of the prosecution story as evident from the evidence of PW-1 Prakash Patil, the evidence of PW-2 Ganesh Waghchoure and PW-4 PI Kedu Devde. Admittedly, in the year 1999, the accused was Talathi of Village Kon, Taluka Bhiwandi, District Thane. The complainant PW-1 Prakash Patil is an agriculturist by profession. He owns land bearing Survey No.71, Hissa No.1, Survey No.75, Hissa No.2 and AJN 3 Survey No.78 at Bhayander which was subsequently disposed of by him in the year 1991. After selling the land situate in Bhayander, he purchased 26 gunthas of land of Maruti Vithu Patil out of Survey Nos.7/4, 7/5, 18/3 and 18/4 of Village Kon for Rs.58,000/- by registered Sale Deed dated 7/2/1991. After the Sale Deed was registered with the Sub-Registrar, Bhiwandi, PW-1 Prakash Patil went to the place of the accused in the month of March, 1991 for getting the land mutated in his name. The accused told him that he will have to pay money for that work. PW- 1 Prakash Patil again went to the office of the accused on 9/3/1991 and 10/3/1991 but the accused was not available. On 3/7/1991, he went to the house of the accused and demanded 7/12 extract and a certified copy of the mutation in respect of the newly purchased land. According to PW-1 Prakash Patil, the accused told him to come with Rs.500/- on 5/7/1991 to his house for 7/12 extract. 3. On 4/7/1991, PW-1 Prakash Patil went to the office of the Anti Corruption Bureau at Thane (for convenience, “the ACB, Thane”) and lodged his complaint (Ex-10). PW-4 the Investigating Officer PI Devde wrote a letter (Ex-22) to the RTO, Thane to requisition services of two clerks to act as panchas. Pursuant to AJN 4 that letter, the RTO, Thane made two clerks available to act as panchas. They are Vasant Sawant and PW-2 Ganesh Waghchoure. Both the panchas and the complainant were asked by PW-4 PI Devde to come to the office of the ACB, Thane at 5.00 a.m. on the next day morning. On 5/7/1991, at 5.00 a.m., both the panchas and the complainant arrived. They were introduced to PW-1 Prakash Patil. They were made to read the complaint. After reading the complaint, they put their signatures on the complaint. PW-4 PI Devde asked both the panchas to take physical search of PW-1 Prakash Patil. On search, PW-1 Prakash Patil was found having Rs.557/- on his person. Out of that amount, PW-1 Prakash Patil handed over Rs.500/- to PW-4 PI Devde. There were five notes of Rs.100/- denomination each. Numbers of the five currency notes were noted in the panchnama. Then ASI Dixit gave demonstration to the complainant and panchas about the use of anthracene powder. Anthracene powder was applied to the currency notes. The marked notes were folded and put into the left side shirt pocket of PW-1 Prakash Patil. PW-1 Prakash Patil was instructed to accompany the panchas to the place of the accused. PW-1 Prakash Patil was told that if the accused enquires about the identity of PW-2 Waghchoure, he should be introduced as AJN 5 prospective purchaser of his land. PW-1 Prakash Patil was instructed to ask for 7/12 extract and certified copy of mutation entry from the accused. He was told that if the money is demanded he should hand over the marked currency notes to the accused. He was told to give signal to the raiding party on acceptance of the money by holding right sleeve of his shirt up to the elbow joint while coming out of the room of the accused. PW- 2 Waghchoure was asked to hear the talk between PW-1 Prakash Patil and the accused. PI Khaire was asked by PW-4 PI Devde to accompany PW-1 Prakash Patil and see that after acceptance of money, it was not destroyed by the accused. PI Khaire was also instructed to pose as one of the prospective purchasers of the land of the complainant. Pancha Vasant Sawant was also instructed to accompany the raiding party. Pre-trap panchnama was drawn between 5.30 a.m. and 6.45 a.m. It is at Ex-14. 4. On 5/7/1991 at about 7.20 a.m., PW-4 PI Devde and PW-1 Prakash Patil, PW-2 Waghchoure, pancha Sawant, PI Khaire and other members of the raiding party left the office of the ACB, Thane and reached Lal Chowky, Kalyan at about 8.10 a.m. The vehicle was halted by the road side. PW-1 Prakash Patil, PW-2 AJN 6 Waghchoure and PI Khaire went towards the house of the accused in front of Room No.2 of Padmavati Prasad Society. They were followed by PW-4 PI Devde and other raiding party by keeping some distance. After sometime, PW-1 Prakash Patil, PW- 2 Waghchoure and PI Khaire went to the room of the accused. The accused was present in his house. He asked PW-1 Prakash Patil, PI Khaire and PW-2 Waghchoure to sit. PW-1 introduced PW-2 Waghchoure and PI Khaire to the accused as intending purchasers of his land. He asked the accused to furnish 7/12 extract at the earliest. The accused demanded money. The accused accepted the money and put it below the bed. The accused told him that he would give 7/12 extract on Monday i.e. on 8/7/1991. Thereafter PW-1 Prakash Patil went out of the house and gave signal to the raiding party. The members of the raiding party rushed into the house of the accused. PW-1 Prakash Patil waited outside the room. 5. PW-4 PI Devde introduced himself and both the panchas to the accused. PI Khaire was holding both the wrists of the accused. He was also introduced to the accused. The accused told PW-4 PI Devde that he had not demanded money from PW-1 Prakash Patil AJN 7 and he had accepted the same because PW-1 Prakash Patil gave it to him. PW-4 PI Devde asked the accused where he had kept the amount. The accused told him that he had kept it below the bed. Thereafter, the hands of the accused were examined in ultra violate rays. Traces of anthracene powder were noticed on his hand. Similarly, on his face, anthracene powder was seen. The place below the bed where the tainted money was kept by the accused was examined. in the ultra violate rays. Anthracene powder was noticed there also. Five notes of Rs.100/- denomination each were found below the bed. Traces of anthracene powder were seen on those notes. Numbers of those notes tallied with the numbers of notes noted in the panchnama. Thereafter, PW-1 Prakash Patil was called inside the room. His hands were examined in the ultra violate rays. Anthracene powder was seen on his palm and fingers. The accused was asked to produce the documents with regard to the land of PW-1 Prakash Patil. The accused handed over the file to him. From the file, xerox copy of Sale Deed executed by Maruti in favour of PW-1 Prakash Patil, 7/12 extracts of land of PW-1 Prakash Patil and a notice issued by the accused to the original land owner and a notice issued by the competent authority under Urban Land Ceiling AJN 8 Act to Maruti Patil were attached. Personal diary of the accused was also attached. Post-trap panchnama was recorded from 8.45 a.m. to 12.10 p.m. It is at Ex-15. 6. Thereafter, the raiding party proceeded to the village of the accused along with the accused. The office of the accused situated at Village Kon was closed. He was asked to open the office. On opening the office by the accused, he was asked to furnish the relevant documents. He furnished four 7/12 extracts which came to be attached. Panchnama Ex-16 was prepared from 13.00 hours to 13.45 hours in respect of the same. PW-4 PI Devde then went to Bazar Peth Police Station, Kalyan and lodged his complaint which is at Ex-26. On completion of investigation, sanction to prosecute the accused was obtained. The accused was then charged as aforesaid. 7. The accused pleaded not guilty to the charge and claimed to be tried. 8. In support of its case, the prosecution examined four witnesses. The prosecution examined PW-4 Prakash Patil, the AJN 9 complainant, PW-2 Waghchoure, the pancha witness, PW-3 Subhash Dumbre, the Sub-Divisional Officer, Bhivandi and PW-4 PI Devde. 9. According to the accused, he did not accept the illegal gratification from PW-1 Prakash Patil. The amount of Rs.500/- was accepted by him from PW-1 Prakash Patil for investing it in Small Savings. The accused, however, did not examine any witness in support of his defence. 10. After perusing the evidence on record, the learned Sessions Judge came to a conclusion that the prosecution had proved its case beyond reasonable doubt. He, therefore, convicted the accused as aforesaid and, hence, this appeal. 11. I have heard Mr. Chitnis, learned senior counsel appearing for the accused and Ms. Bhosale, learned A.P.P. representing the State. With the help of counsel for the parties, I have carefully perused the evidence and the relevant record. 12. Mr. Chitnis, learned senior counsel appearing for the accused AJN 10 contended that the impugned judgment and order is perverse and deserves to be set aside. He pointed out that the learned Judge has held that the alleged demand made in March, 1991 is not proved. After recording this finding, learned Judge should have gone on to hold that demand allegedly made on 3/7/1991 is also not proved because PW-1 Prakash Patil cannot be called a reliable witness. 13. Mr. Chitnis drew my attention to the statement of the accused recorded under section 313 of the Criminal Procedure Code (for short, “the Code”) in which the accused has stated that he took Rs.500/- from the complainant for investing in Small Savings. Mr. Chitnis submitted that the case of the accused that as a Talathi, he was to encourage people to invest money in Small Savings and therefore he took money from the accused is supported by the evidence of PW-3 Subhash Dumbre, the Sub-Divisional Officer, Bhivandi. Mr. Chitnis contended that the genuine nature of the defence of the accused is evident from the fact that in complaint dated 4/7/1991, PW-1 Prakash Patil has stated that the accused had not told him to invest money in Small Savings. Mr. Chitnis submitted that there was no reason for the accused to refer to AJN 11 Small Savings in his complaint. According to Mr. Chitnis, this indicates that the money was really taken for investing in Small Savings and expecting that the accused would come out with the true story, PW-1 Prakash Patil has created a background in the complaint. 14. Mr. Chitnis submitted that section 7 of the said Act makes taking gratification other than legal remuneration in respect of an official act by public servant, an offence. Mr. Chitnis submitted that section 20 of the said Act says that where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13, 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 may be, as a motive or reward without consideration or for a consideration which he knows to be inadequate. Mr. Chitnis submitted that the words “other than legal remuneration” are important. In this case, the AJN 12 accused had accepted money for investing it in Small Savings. He had accepted it as legal remuneration for the Government for investment in National Saving Scheme. Therefore, presumption under section 20 cannot arise. Mr. Chitnis submitted that the sanctioning authority failed to notice this important aspect. He submitted that the sanctioning authority has not appreciated that Talathies had to induce people to invest in Small Savings and, therefore, this is not a case where the accused had accepted illegal gratification. The sanction is granted without noticing this vital aspect and, therefore, it is bad in law. 15. Mr. Chitnis submitted that assuming that as per section 20 of the said Act, burden has shifted to the accused, the accused has discharged that burden. He has probabalised his defence. He has rebutted the presumption. Mr. Chitnis submitted that PW-4 PI Devde has stated in his cross-examination that after the post-trap panchnama, the accused had told him that he had accepted money for investing it in National Saving Scheme and he had recorded the statement of Nayab Tahsildar to ascertain whether the job of collecting the money for National Saving Scheme was assigned to the accused. Mr. Chitnis submitted that if Nayab Tahsildar's AJN 13 statement was recorded, it was necessary for the prosecution to examine him particularly when the accused had come out with a defence that he had collected the money for investing it in National Saving Scheme. According to Mr. Chitnis, adverse inference needs to be drawn against the prosecution. Mr. Chitnis relied on the judgment of this court in Kishan Khashapa Gogawale v. The State of Maharashtra 1994 (4) Bom.C.R. 399 where a somewhat similar defence was accepted by this court. 16. Mr. Chitnis further submitted that PW-2 Waghchoure, the panch witness is a habitual pancha. He has admitted in his evidence that on earlier occasions also, he had acted as a pancha in trap cases. The evidence of this witness, therefore, cannot be relied upon. In this connection, he relied on the judgment of the Supreme Court in State of Gujarat Through CBI v. Kumudchandra Pranjivan Shah, 1997 SCC (Cri.) 750. 17. Mr. Chitnis then contended that admittedly PI Khaire accompanied the raiding party to the office of the accused. He submitted that this fact is admitted by PW-4 PI Devde. PW-4 PI AJN 14 Devde has said that he had asked PI Khaire to accompany PW-1 Prakash Patil. He had instructed him to pose as one of the prospective purchasers of the land and see that after acceptance of the bribe money by the accused, it was not destroyed. Mr. Chitnis submitted that therefore, the demand allegedly made by the accused before PI Kaire is not admissible in evidence as it is in the nature of statement made to the police officer and is hit by section 162 of the Criminal Procedure Code and section 25 of the Indian Evidence Act. In this connection, Mr. Chitnis relied on the judgments of the Supreme Court in Ramkishan Mithanlal Sharma v. The State of Bombay, 1954 SC Vol. LVII Bom.L.R. 600 (Lloyds Bank's case, for short) and Bheru Singh s/o. Kalyan Singh v. State of Rajasthan (1994) 2 SCC 467. 18. Mr. Chitnis submitted that in any case, the prosecution ought to have examined PI Khaire. Non examination of PI Khaire makes the prosecution story suspect. Mr. Chitnis then submitted that PW- 4 PI Devde had lodged a complaint against the accused. He is interested in the success of the complaint. He should not have, therefore, been entrusted with the task of conducting the AJN 15 investigation. In this connection, Mr. Chitnis relied on the judgment of this court in Tryambak Lilaji Binnar v. State of Maharashtra, 2002 Cri. L.J. 3059. Mr. Chitnis submitted that in the circumstances the impugned judgment and order deserves to be set aside. 19. As against this, Mrs. Bhosale, learned A.P.P. appearing for the State submitted that the impugned judgment and order does not merit any interference. She submitted that the evidence of PW- 1 Prakash Patil is corroborated by the evidence of PW-2 Waghchoure and the evidence of the Investigating Officer PW-4 PI Devde. She submitted that PI Khaire was not part of the investigating team. He was just sent with the raiding party to ensure that the accused does not destroy the money after accepting it. Therefore, the statement made before him cannot be excluded from the evidence. Since he was not concerned with the investigation, he has not been examined by the prosecution. She submitted that therefore, adverse inference cannot be drawn because he is not examined. In support of her contention that the statement made before PI Khaire is not inadmissible in evidence, AJN 16 Mrs. Bhosale relied on the judgments of the Supreme Court in Ramesh Chandra Mehta v. The State of West Bengal, AIR 1970 SC 940, Raj Kumar Karwal v. Union of India & Ors. AIR 1991 SC 45 and State of Gujarat v. Anirudhsing and Anr. (1997) 6 SCC 514. Mrs. Bhosale submitted that from the evidence of PW-1 Prakash Patil, PW-2 Waghchoure and PW-4 PI Devde, it is clear that the accused was concerned with mutation of the name of PW- 1 Prakash Patil in the revenue record. She submitted that the panchnama (Ex-16) which pertains to attachment of documents from the office of the accused indicates that from the office of the accused, no documents pertaining to National Saving Scheme were attached. However, papers pertaining to mutation entries concerning PW-1 Prakash Patil were recovered from his office. This indicates that the defence of the accused is palpably false. Mrs. Bhosale submitted that the prosecution has established its case beyond reasonable doubt and the appeal be dismissed. 20. I shall first analyse the evidence which pertains to the alleged demands made prior to 3/7/1991. PW-1 Prakash Patil has stated in his evidence that he had gone to the place of the accused in the AJN 17 month of March, 1991 to get the land mutated in his name as per sale deed dated 7/2/1991. According to him, the accused told him that he will have to pay him money for getting the land mutated in his name. He told him that he had no money. In his complaint (Ex- 21) however, he has stated that in March, 1991, he had gone to the accused for 7/12 extract but the accused told him that the work cannot be done immediately and that he should come later. He has not stated, at that stage, that the accused demanded Rs.500/- from him. 21. In the complaint, he has stated that on 3/5/1991, he met the accused in his office at 10.30 a.m. for mutation entry and 7/12 extract. According to him, the accused told him that unless he pays Rs.500/-, his work will not be done. In his evidence, in the court, however, he has not referred to this visit at all. In his evidence, he had stated that he had gone to the office of the accused on 9th and 10th of March, but the accused was not available. This is absent in his complaint. Therefore, there is variance in the averments made in the complaint and the deposition of PW-1 Prakash Patil in the court as regards the first demand. Learned Special Judge has also observed that there is AJN 18 discrepancy about the visit of PW-1 Prakash Patil to the office of the accused prior to 3/7/1991. On this aspect, I concur with learned Special Judge. I have no hesitation in observing that the alleged demand made prior to 3/7/1991 is not proved. 22. Once the prior demand is not proved, the rest of the prosecution case regarding money allegedly demanded by the accused on 3/7/1991 is concerned, it will have to be read with great caution and circumspection. Evidence of PW-1 Prakash Patil indicates that he was instructed to accompany PI Khaire and PW-2 Waghchoure to the house of the accused. He has said that PI Khaire and PW-2 Waghchoure went inside the house of the accused and he introduced PI Khaire and PW-2 Waghchoure to the accused as intending purchasers of his land. The accused demanded money. He has stated that PI Khaire sat on his side in the house of the accused. According to him when he asked for 7/12 extracts, the accused demanded money for it. Thus demand for money was made by the accused in front of PI Khaire. 23. PW-2 Waghchoure has stated that PW-4 PI Devde instructed him to accompany PW-1 Prakash Patil to the place of AJN 19 the accused and asked him to pretend to be a prospective purchaser of the land if inquired by the accused. He has further stated that PI Khaire was instructed by PW-4 PI Devde to see that after acceptance of money by the accused, it is not destroyed by him. He has further stated that he along with PI Khaire and PW-1 Prakash Patil left the office of ACB for proceeding towards the place of the accused in a van. The van halted at a distance of 3 furlong from the house of the accused. Then, he, PI Khaire and PW-1 Prakash Patil went inside the house of the accused. PI Khaire sat on the right side of the cot. PW-1 Prakash Patil then introduced PW-2 Waghchoure and PI Khaire to the accused as prospective purchasers of his land and requested for the documents. The accused then inquired about PI Khaire and PW-2 Waghchoure told him that he was one of his workers. PW-1 Prakash Patil again insisted for 7/12 extract and mutation entry. Thereupon, the accused told him that after he gets money, he would supply the documents to him by Monday or Tuesday. PW-1 Prakash Patil then paid an amount of Rs.500/- to the accused which the accused kept under his bed. The accused told him to collect the documents on Monday or Tuesday. Thereafter, PW-1 Prakash Patil went outside and gave the agreed signal to the AJN 20 raiding party. PW-2 Waghchoure and PI Khaire remained in the room. According to PW-2 Waghchoure thereafter, PI Khaire disclosed their real identity to the accused and caught hold of both the wrists of the accused. By the time, PW-4 PI Devde and the raiding staff entered the room of the accused. After the post-trap panchnama was drawn, both the panchas, PW-4 PI Devde, PI Khaire and members of the raiding party left the place of the accused for Talathi's office at Kongaon. The accused gave key of the office to PW-4 PI Devde. Office of the accused was opened and relevant documents were taken charge