IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.483 OF 1997 The State of Maharashtra .. Appellant Versus Vishwanath Sidhappa Sambhare .. Respondent Mr.J.P.Yagnik, A.P.P for the appellant-State. Mr.N.V.Bandiwadekar for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd April 2009. : 03rd April 2009. : 03rd April 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the appellant were heard on the earlier date and the appeal was adjourned till today for dictation of judgment. The appellant-State of Maharashtra has taken an exception to the judgment and order dated 17th December 1996 passed by the learned Special Judge, Kolhapur by which the respondent was acquitted for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act). 2. The case of the prosecution is that at the relevant time the respondent accused was working as a (2) Forester at village Karve, Taluka Chandgad, District Kolhapur. The respondent was entrusted with the duty of issuing transport passes for transporting the cut-wood. He was also entrusted with responsibility of issuing passes for cutting trees as per order of the superior officers. The respondent was entrusted with the responsibility of making an enquiry on the basis of applications received for issuing passes and submit a report to the superiors. 3. The allegation of the prosecution is that the complainant Arjun Hudekar made an application for issuing a transport pass. On 03rd October 1991 the said Arjun met the respondent in Tahsildar’s office at Chandgad. At that time the respondent demanded a sum of Rs.400/- as illegal gratification for sending the application to Chandgad and for issuing transport pass after getting the approval from higher officers at Kolhapur. According to him the beat guard Shri Katkar demanded a sum of Rs.100/- from him. Prior to that on 19th October 1991 the complainant filed a complaint with Anti Corruption Bureau. On 21st October 1991 the complainant met the accused in his residential premises. At that time the respondent accused again made a demand. The complainant agreed to bring the amount by evening. (3) The case of the prosecution is that after completing the procedural formalities, a trap was laid and at 8.05 p.m the complainant met the respondent alongwith panch witness at his residential quarter. At that time the respondent demanded a sum of Rs.1,000/- as bribe. The complainant told him that his earlier demand was for Rs.400/- and accordingly he had brought a sum of Rs.400/-. Thereafter, the respondent demanded the said amount of Rs.400/- by way of bribe. According to the prosecution case in presence of the panch witness the respondent accepted the bribe by accepting currency notes from the complainant. 4. The defence raised by the respondent was that his son Uday died in an accident. According to him he was collecting donation for restoration of Shree Hanuman temple at village Vathar. He had demanded donation from the complainant on some occasions. According to him the complainant had agreed to pay a sum of Rs.400/- by way of donation and therefore on 18th October 1991, he had issued receipt in the sum of Rs.400/- in advance. At that time the complainant represented that he was no in possession of money and therefore the same will be paid two to three days thereafter. On 21st October 1991 when the complainant came the respondent stated that for (4) religious purposes it will be better if Rs.1000/- was paid by the respondent. He stated that as the respondent offered a sum of Rs.400/- as assured by him earlier, he accepted the said amount against the receipt which was already issued on 18th October 1991. His defence is that he had not demanded the bribe and had not demanded illegal gratification from the complainant for doing official work of issuing passes. His defence is that transport passes are issued only after there is approval granted by the superior officer. His defence is that the complainant desired that pass should be issued to person of his choice at village Karve and in his absence the wood should be allowed to be carried. His defence is that as the respondent declined to do this illegal act, by taking undue advantage while paying the donation of a sum of Rs.400/- false accusation has been made against the respondent. 5. The learned A.P.P has taken me through evidence of the prosecution witnesses. His submission is that even going by the defence of the respondent, a sum of Rs.400/- was accepted by the respondent at the time of trap. He submitted that according to the respondent the amount of Rs.400/- was accepted by him on 21st October 1991 though a receipt acknowledging payment of donation (5) of Rs.400/- was issued on 18th October 1991. He submitted that an attempt was made by the respondent to establish the said defence by examining the defence witnesses but the same is not successful. He submitted that as the earlier demands and the acceptance at the time of trap was clearly proved, the only conclusion which was possible was that the guilt of the respondent was established beyond reasonable doubt. 6. The learned counsel appearing for the respondent submitted that the learned Special Judge after appreciating the evidence on record has recorded reasoned findings which are certainly possible findings. He submitted that in an appeal against acquittal interference can be made only if two views are not possible and the only possible view is of the guilt of the respondent. He has placed reliance on a decision of the Apex Court in the case of T. Subramanian v. State of Tamil Nadu [(2006) 1 Supreme Court Cases (Cri.) 401] as well as a decision of this Court in the case of State of Maharashtra v. Dattatraya Shankar Diwakar & Anr [2008 All MR (Cri.) 3420]. He submitted that even going by the version of the complainant, it is not established that what was accepted by the respondent was bribe. He submitted that no interference was called for. (6) 7. It will be necessary to refer to the evidence of the prosecution witnesses and in particular P.W.No.1 Arjun Hudekar who is the complainant. He stated that he was working as a jungle contractor for six years and more. According to him he used to purchase trees owned by private persons and thereafter seek permission from the Forest Department for cutting the same. According to him after cutting the trees he used to take the same to Belgaum for sale. He stated that after cutting the trees on private lands he used to collect the timber at one place. Thereafter the concerned authority from the Forest Department used to visit the spot and after taking necessary measurements the authorities used to issue necessary permit for transporting the timber. 8. According to him in the year 1991 he purchased trees on the land of one Hemkhana Gundu Adkulkar. The said owner had given him authority to cut the trees. After cutting the trees he collected the timber in the land of one Krishna Chitnis for carrying the timber to Belgaum. He needed permission from the Forest Department for that purpose. On 19th September 1991 he had applied for permission to the Forest Department of Taluka Chandgad. On 20th September 1991 the Forest (7) Ranger returned the said application for obtaining the necessary endorsement and instructed P.W.No.1 to give application to the Forester at Karve. Accordingly, he handed over the said application on 20th September 1991 to the respondent-accused who was the forester at Karve. According to him at that time the respondent-accused stated that the complainant should pay some amount for doing his work. According to the complainant he had agreed to the suggestion. 9. On 03rd October 1991 the respondent and the forest guard came to the spot where the complainant had collected the timber. They drew panchnama and recorded the statement of the complainant. Thereafter the respondent-accused informed the complainant that the papers will be sent to Chandgad and thereafter the papers will be sent to Kolhapur for necessary sanction. The respondent-accused stated that after getting sanction from Kolhapur he should be paid the amount which is already specified. At that time the forest guard Mr.Katkar demanded Rs.100/- from the complainant. According to him on 14th October 1991, the D.F.O office Kolhapur handed over the papers to him to enable him to give the same to the office of the Forest Department at Chandgad. He stated that he was called for taking (8) papers two days thereafter. When he came out of the office, the respondent-accused and guard Katkar met him and inquired as to whether he had brought papers from D.F.O office. He answered in the affirmative. The respondent-accused stated that after getting the necessary signature on the papers given to Chandgad office he should get the papers and give it to the respondent-accused at Karve. He reiterated that the complainant should bring money as demanded by him. Even the forest guard Katkar demanded sum of Rs.100/-. On 19th October 1991 the complainant approached A.C.B office and lodged the complaint thereafter trap was laid. Thereafter pre-trap panchnama was drawn and necessary procedure was completed. P.W.No.1 has referred to various procedural aspects leading to setting up of trap. He has described as to how panch witnesses were instructed. As far as the trap is concerned he has stated in paragraph No.12 which reads thus: "12. Then the A.C.B. Officer, myself, two panch witnesses and the A.C.B. staff proceeded to Karve by the jeep. The jeep was halted at the approach road of Gholgarwadi. All of us alighted from the jeep. Therefore, we started (9) walking towards Karve. Myself and panch No.1 were ahead, rest of the persons were behind us. Myself and panch No.1 went to the house of the accused. The accused was present in his house. I informed the panch No.1 that he was the same Sambare. The accused was sitting on the chair. After entering the house, I wished him. He told me to sit. There were bamboo made chairs. Myself and panch No.1 occupied it. The accused saying that he was going to latrine went away. Then sometimes thereafter he returned. He took wash and garlanded the photo of his son in that room. That time he had a bandi and an underware on his person. The bandi was having two pockets. Then the accused occupied his chair. He asked me that if I had the money, I should give him Rs.1,000/- I said that I was not having that much amount, but I had brought Rs.400/- as demanded by him. I said that I was going to attend Kumbhmela, therefore, I would give rest, of the amount afterwards. He said ‘let it be’. He then demanded the money. He held his left hand before me. I took out the amount from myself pocket with my right hand and gave it to him. I gave him the bundle of Rs.400/-. The (10) accused counted the amount with his both hands. Then he kept it in his hand pocket by his right hand. He kept it in the left pocket of the bandi. There by I came out and gave the agreed signal by putting off my cap with my left hand. before going out for giving signal I asked the accused to give the pass to my companion who was introduced him as my driver. The accused agreed to it. There was no other talk than that." He further stated that when top of his right hand fingers and opening of his shirt was searched in the ultra violet lamp the same emitted glow. The four currency notes of Rs.100/- allegedly given by the complainant to the respondent were shown to the complainant and he identified the same. He was subjected to detailed cross-examination. He admitted that neither the respondent nor Katkar had demanded money from him for drawing panchnama of the trees cut by him. He further admitted that unless sanction was given by D.F.O, he was not entitled to refuse the pass. In paragraph 18 of the cross-examination, the P.W.No.1 has stated thus: " .... It is true that the accused was (11) collecting donation from various persons. I do not know whether the accused had passed a donation receipt on 18.10.91 in my name for Rs.400/-. It is true that the accused had demanded donation from me. He demanded the amount for 2 to 4 times. It is before the incident. If the accused had credited Rs.400/- in my name to any Devasthan. I have not given that donation. On 3.10.91 the accused had demanded money from me and, therefore, I was knowing that it was an illegal demand. On 15.10.91 also as the accused demanded money from me. It was knowing that it was an illegal demand. From 3.10.91 to 15.10.91 though I visited the Forest Office at Chandgad and Kolhapur, I did not make enquiry with them whether I should give the amount to the accused. ..." In further part of the cross-examination P.W.No.1 complainant stated thus: " .... It is true that the accused had demanded money from me. The accused said me that I (12) should give him Rs.400/-. Except that he said nothing. It is true that the A.C.B. instructed me that after going to the accused I should open a talk regarding the pass. ... " He admitted that the A.C.B. had instructed him that if the respondent-accused would demand for a bribe then only the amount should be given. He admitted that A.C.B had instructed him that unless and until the respondent-accused demands bribe, he should not touch the amount and should not give it to the respondent-accused. He asserted in the cross-examination that what was given by him was a bribe. 10. P.W.No.2 is Jagannath Hari Sanke. He was Conservator of Forest, Kolhapur at the relevant time. He stated that after perusing of the papers of investigation, he found that there was a prima facie case to proceed against the accused. He denied the suggestion that he granted sanction without applying his mind. P.W.No.3 is one Hemkhana Gundu Adkurkar. He stated that he was owner of the land bearing B. No.390 at village Tadshinhal. He stated that in the year 1991 (13) he had sold standing trees to the complainant. He stated that he had executed the power of attorney in favour of the complainant. 11. Witness No.4 Govind Laxman Pawar is not really a material witness who stated that he had let out two rooms to the respondent-accused. P.W.No.5 Harishchandra Balaku Kamble was examined to prove and certify extract of the inward register. P.W.No.6 Laxman Pandurang Bhosale was at the relevant time working as a clerk in the office of Tahsildar. 12. P.W.No.7 Jagdish Davarde was working as an accountant in the Forest Office in the year 1991. He stated that the respondent-accused was working as a forester at Karve since 1988. He was panch to the panchnama at Exhibit 33. P.W.No.8 is Dinkar Mandlik who was attached to A.C.B.Kolhapur as Police Sub-Inspector. It will be necessary to refer to his cross-examination The relevant part of the cross-examination reads thus: " ..... It is true that I instructed the complainant to open talk regarding the pass on going to him. Then if the accused would demand for the money for issuance of the pass then only (14) should touch the amount. I also instructed him that unless and until the accused demanded for the amount the complainant should not touch the amount. My investigation disclosed that till the complainant touched the bribe he has not opened the talk regarding the passes. It is also not disclosed that the accused demanded the money for issuance of the passes. After the trap I did not give explanation from the complainant. Whether he had agreed to give Rs.1,000/- to the accused. It is not true to say that the accused had not demanded money for the issuance of the pass." 13. Now coming back to the evidence of the complainant, apart from the earlier demand he has deposed regarding the alleged demand made at the time of trap. His version is that after he entered the house of the respondent alongwith panch witnesses the respondent-accused went to latrine and after sometime he returned back. He took a wash and garlanded photograph of his son in that room. It is stated that the respondent-accused asked him whether he had brought the amount and if he had the amount, he should pay (15) Rs.1,000/-. The complainant stated that he was not having that much amount but he had brought Rs.400/- as demanded by him. Thereafter, the complainant took out the amount from pocket of right hand side and gave it to respondent accused. The amount was of Rs.400/-. The respondent accused accepted the amount with both of his hands. Thus, in the examination-in-chief the complainant has stated that the first question by the respondent accused was whether he had brought the amount. Thereafter the respondent accused took out the amount from his pocket and gave it to the accused persons. Thus, the complainant has not stated that the demand of Rs.1,000/- was made as the bribe or illegal gratification for the purposes of doing the official work. In fact, this aspect is completely absent in the examination-in-chief of the complainant. In paragraph 12 of the examination-in-chief what is proved is that the sum of Rs.400/- was paid to the complainant by the respondent. 14. On this aspect it must be noted here that the complainant did not state that the demand of Rs.1,000/- was in consideration of doing some official work or for issuing pass. It will be also necessary at this juncture to refer to the other material prosecution (16) witness, namely, P.W.No.6, a panch witness who accompanied the complaint. In paragraph 15 he stated that the respondent accused did not ask him and the complainant as to why they had come. His version in paragraph No.15 of his evidence reads thus: "15. When we went to the accused he did not ask us to why we had come? Hudekar said that he had come as directed by him. Sambare asked us to wait for 10 minutes and went for latrine. During those 10 minutes I had no talk with Hudekar. When he returned from the latrine, he went to the bathroom, washed his hands and feet and then occupied his chair. Then he said to Hudekar if he had brought the money, he should give it to him. It has been mentioned in the panchanama and in my statement. Hudekar did not say the quantum of amount he has brought. If the sentence that the accused said to Hudekar that if he had brought the money he should give it to him is not mentioned in the panchanama or in my statement, I cannot assign any reason for it. Hudekar said that he had brought the money for which the accused had demanded. Hudekar did not say as to for which purpose he was giving (17) the amount. I did not tell Hudekar that he should give money saying that it was a bribe amount. I did not restrain Hudekar from giving the money to Sambare saying that as by that time Sambare did not ask for bribe money, he should not give it to him. ..." He has further stated that he did not tell before the police that the accused had asked the complainant whether he had brought Rs.1,000/- as told by him before the Court. 15. Thus, at the time of the trap there was no demand of bribe by the respondent accused. It will be necessary to refer to this decision of the learned Single Judge of this C ourt in the case of State of Maharashtra Vs. Dattatraya. This Court held that if there was no cogent evidence to show that the demand was made for bribe, the acquittal of the accused for offence punishable under said Act of 1988 was justified. 16. At this stage, it will be necessary to refer to the defence witnesses examined by the respondent accused. The 1st defence witness is Madhukar Deshpande (18) who stated that whenever he used to take contract for transporting timber he used to get required passed from the respondent accused. He stated that in the year 1991 he had given a sum of Rs.51/- for the purpose of construction of Hanuman temple to respondent accused. He produced the receipt in evidence. The defence witness No.2 is Nandkumar Winchu who was working at the relevant time as a clerk in Pashchim Maharashtra Devasthan Samiti. He stated that all temples in Pashchim Maharashtra were under the management of the said Samiti. He stated that the said Samiti had given permission for reconstruction of the temple and for collection of donations. He produced on record the donation receipt book containing office copies of receipts bearing Nos.801 to 900. He stated that receipt book shows that the donations covered by receipt Nos.801 to 807 were received by the respondent accused. The total amount collected was Rs.960/- which was credited to the account of the Devasthan Samiti. 17. Defence witness No.3 Baburao Aralekar deposed regarding the meeting held in the village for the purpose of renovation of the Hanuman temple. He stated that the Devasthan Committee had issued about ten or eleven donation receipt books on 04th April 1990. He (19) stated that the Devasthan Committee had given the receipt books to those persons who were appointed to collect donations and receipt books were given to those persons who were not office bearers of the renovation committee. He identified the receipt book given to the respondent for collecting donations. He stated that vide receipt Nos.801 to 807 the respondent accused had collected the sum of Rs.916/- and he deposited the said amount on 18th March 1992. 18. Now coming to the findings recorded by the learned Special Judge, it must be noted that the learned Special Judge has considered evidence of all the witnesses and the other material on record. The learned Judge observed that it had come on record that just six months before the incident, the accused had lost his son. The learned Judge observed that a receipt at Exhibit 58 in the sum of Rs.400/- dated 18th October 1991 issued in favour of the complainant undisputedly bears the signature of the respondent accused as the person collecting the donation. In fact, in paragraph 18 of the cross-examination of the complainant he admitted that in those days the respondent accused was collecting donations for renovation of the temple. (20) 19. The learned Judge from the evidence of the complainant found that there was no demand of bribe by way of gratification in the sum of Rs.1000/-. In the backdrop of the aforesaid circumstances, the learned Judge observed that before the trap was laid the complainant was instructed that he should touch the amount kept in his pocket only after the accused makes demand for bribe money. The learned Judge observed that the very fact that the complainant demanded Rs.1,000/- from the accused showed that he was presuming that the complainant had come to him for offering the amount by way of donation for which the receipt was already issued. 20. Considering the lacuna in evidence of P.W.No.1, namely, that he has not deposed that at the time of trap the amount was demanded by way of bribe and taking overall view of the matter, I find that the learned trial Judge has rightly accepted the defence of the respondent that what was paid was by way of donation as probable defence. The finding of the learned trial Judge that the guilt is not established is certainly a possible view which could have been