1 Cri Appeal No. 168 of 2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 168 OF 2000 The State of Maharashtra Appellant V E R S U S Ashok Sonu Kulkarni, Aged 36 years, Talathi, Maniyarkhede Saja, Khedi Budruk, Taluka and District Jalgaon Respondent Mr. S.N. Kendre, APP for the appellant / State Mr. Joydeep Chatterji, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 8th December, 2010 ORAL JUDGMENT 1. The State of Maharashtra has filed the appeal against the Judgment and order dated 5th November, 1999, passed by the learned Special Judge, Jalgaon, in Special Case No. 7 of 1993. The learned Judge acquitted the respondent / accused of the offences punishable under Sections 7, 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act. 2. The prosecution alleged that the respondent / accused demanded and then accepted a bribe of Rs.3,000/- from the complainant. It is alleged that the demand was made for issuing a 7/12 extract to the complainant. As against this, the respondent took up a defence that he received the amount as contribution towards the small saving scheme. The learned Judge of the trial Court accepted the defence and acquitted the respondent. The learned A.P.P. asserted that the learned Judge of the trial Court erred in rejecting the prosecution case. He said that in view of the respondent’s admission that he received the amount of Rs.3,000/- from the complainant, the learned Judge of the trial Court should have held in favour of the 2 Cri Appeal No. 168 of 2000 prosecution. In order to appreciate this argument, one must examine the prosecution evidence. 3. The prosecution examined in all six witnesses, whereas the respondent / accused examined one Ganpat as his defence witness. The prosecution witness No. 1 – complainant stated that he noticed an entry of illegal transaction on the 7/12 extract of his land, some time in 1992. He said, therefore, on 14th December, 1992, at about 11.00 a.m., he met the respondent, who was Talathi at his village. He said, he asked the respondent to issue fresh 7/12 extract of his land. He said, the 7/12 extract mentioned an entry as illegal transaction. He said, the respondent asked him as to why he required the 7/12 extract. He said, he replied to the respondent that he required the same for lodging of case in the Court and for getting the entry “illegal transaction” deleted. He said, to this, the respondent told him that he would remove the entry, provided; he was paid a bribe of Rs.5,000/-. He said, thereafter, the respondent agreed to accept Rs.3,000/- for issuing a fresh 7/12 extract deleting the said entry. He said, a meeting was arranged on the next day at 11.00 a.m. for the purpose of paying the bribe. He said, thereafter, he went to the Anti Corruption Bureau and reported the incident. The Anti Corruption Bureau then arranged a trap. He said, as per the arrangement of the trap, he and the shadow panch went to the respondent’s office on 15th December, 1992. He said, he found the respondent present in his office. What he stated thereafter is rather peculiar and is required to be quoted here in verbatim : “I then made Namaskar to him and inquired whether the work was done. He then presented one blank paper to me and asked me to write down as per his dictation, and I wrote down one line in the name of Talathi and expressed my inability to see then due to taking place of my eye operation. to the panch and then accordingly, the panch was writing as per dictation of accused Talathi. That 3 Cri Appeal No. 168 of 2000 paper was having date somewhat as 6-10-1992. Then my signature was also obtained on a blank form. I then paid money to him he took that amount counting it from both the sides. Money was consisting of 4 currency notes of Rs.500/- each and 10 currency notes of Rs.100/- each. Accused then put that amount in his left hand side pocket of his shirt. I then went out side the room and made the signal by keeping handkerchief on my shoulder.” 4. What is pertinent to note here is the omission on the part of the complainant to say that the respondent demanded Rs.3,000/- as bribe to him. He clearly indicated that he volunteered to hand over the tainted currency notes to the respondent. However, the prosecution witness No. 2, the shadow panch narrated the incident of trap as under : “Complainant then made inquiry with Talathi about his work. Talathi then presented one paper to the complainant and asked him to write an application. Complainant then wrote part of the tiele and then he asked me to write saying that he was not able to see. I then started writing the application. He had then asked as to what date to be written and then gave one date seeing the register, which was available. He gave the date as 17-10-1992. He said that it was the date avail;able and therefore, he would do the work in that date and he would not have done that work. Even some one had offered him amount of one lac even. He then gave the contents of the application and I then wrote down the application accordingly. He then kept that application in the register, making his signature in the margin. Complainant also had signed that application, at the end of the application, writing the date as 15-12-1992. Talathi then prepared the 7/12 extract and gave it to the complainant, deleting the entry of illegal transaction, and also asked as to how many copies should be given and complainant then asked to furnish two copies. Complainant then made inquiry whether the transaction had become legal and 4 Cri Appeal No. 168 of 2000 accordingly the talathi had affirmed. Talathi then asked to complainant that he had done the work of the complainant and therefore the complainant shall do his work as decided previously. Complainant then gave the amount of Rs.3000/- kept in left side pocket of his shirt.” This witness clearly indicated that the respondent, after issuing the 7/12 extract, demanded the bribe and the complainant handed over to him the tainted currency notes. But, as said above, the important aspect of the case of demand of bribe and then delivery of the bribe amount, has not been corroborated by the complainant himself. It is settled Law that the evidence in material particulars requires corroboration. The Supreme Court in the case of Panalal Damodar Rathi v. State of Maharashtra (AIR 1979 Supreme Court 1191) observed as under: “8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of S. 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery 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.” On this count of lack of corroboration in material particulars of the case, the respondent deserves acquittal. Nonetheless, the learned Judge of the trial Court accepted the defence of the respondent that he had accepted the amount towards fulfilling target of small saving scheme. The learned A.P.P. asserted that if the respondent admitted that he had accepted the amount of Rs.3,000/- from the complainant, the prosecution does not need to prove the specific demand made by the respondent. He said that in such situation the prosecution evidence in respect of the earlier incident of 14th December, 1992 5 Cri Appeal No. 168 of 2000 should be believed. He pointed out that the incident of 14th December, 1992 was narrated by the prosecution witness No.1 as well as prosecution witness No. 4 Ramesh. He said, both these witnesses clearly stated that the respondent demanded Rs.3,000/- as bribe and not as a small saving, as per the small saving scheme. Indeed, this argument is quite plausible. But, the learned Judge of the trial Court accepted the word of the respondent over the word of the prosecution witnesses that there had been a demand of bribe. The learned Judge probably thought it fit that the respondent / accused was not under obligation to prove his defence beyond reasonable doubt and probably thought it fit to accept the defence on probability. In the background of my own conclusion drawn above in respect of lack of corroboration, I would rather agree with the inclination of the trial Court Judge to accept the defence on probability. The appeal should therefore fail. The appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/criapl/168/2000/8/12/10/ok