1. This criminal appeal has been preferred against the judgment and order dated 17/10/2001 in Special Case No.23/1994 passed by the Special Judge, Khamgaon by which appellant has been convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988") and is awarded sentence of rigorous imprisonment of one year and to pay fine of Rs.500/-, in default to suffer rigorous imprisonment for three months for the offence punishable under Section 7 of the Act of 1988 and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.500/- and in default, to suffer further rigorous imprisonment for three months for the offence under Section 13(1)(d) punishable under Section 13(2) of the Act of 1988.
2. The facts and circumstances giving rise to this criminal appeal can be stated briefly as under :
Complainant Onkar Satav is resident of village Sangrampur, District Buldana and had jointly owned agricultural land being Gat No.122 admeasuring 65 Ares situated at Sangrampur with his brother. Field of one Shrikrushna Umbarkar being Gat No.121 was adjoining to the land of the complainant. At the time of incident, complainant had sown wheat crop in his field and after thrashing the crop, its residues were lying in the field. The adjoining land holder Shrikrushna Umbarkar had set grass standing on the boundary of his field on fire, due to which the residues of wheat crop lying in the field of complainant Onkar also caught fire. Said incident took place prior to 25/4/1993, of which complainant learnt, on his returning back to his village from his work place at Akola and accordingly on 27/4/1993 he lodged a report against Shrikrushna Umbarkar. On the ensuing Sunday, when complainant returned back to his village Sangrampur, he learnt about some notice received from the Tahsil Officer, Sangrampur relating to the matter fixed on 5/5/1993.
3. It is the case of the prosecution that during the above period, accused was working as Naib Tahsildar at Sangrampur and the case initiated on the basis of the complaint lodged by the complainant was before him. On 5/5/1993 the complainant attended the office of the accused when evidence of two witnesses of complainant was recorded and thereafter accused after calling complainant inside his chamber, informed him that he would impose fine upon him and would also inform his Department about pendency of the said proceedings against him, which were initiated on the basis of the complaint lodged by Shrikrushna Umbarkar, upon which complainant requested the accused not to impose fine and not to inform his Department about pendency of such case when accused is alleged to have demanded bribe of Rs.1500/- for not imposing fine and for not informing complainant's Department. The complainant paid Rs.500/- on the same day and further dates were given for hearing. It is the case of the prosecution that on all such dates, accused was insisting complainant for making payment of balance amount of Rs.1,000/- and on complainant's failure to comply with the same, accused was threatening him to impose fine and to inform his Department about the case.
4. On 3/7/1993 when the matter was fixed for hearing, the accused again renewed his threats as above and warned the complainant to make payment of Rs.1000/- on or before 7/7/1993 to which complainant agreed to make payment of the said amount within two days and since complainant was not willing to make payment, he visited the Office of Anti Corruption Bureau at Buldhana and lodged his report (Exh.17) on 6/7/1993 at 10 A.M.
5. Based on the report, P.W.8 Pande, Police Inspector, Anti Corruption Bureau, Buldhana took necessary steps to arrange a trap by summoning two independent panch witnesses from the office of Zilla Parishad. The panchas were introduced to the complainant and they had also verified the contents of Exh.17. The complainant also orally narrated his grievance to both the panchas. The complainant as well as both the panchas were given demonstration of chemical reaction of phenolphthalein powder with solution of sodium carbonate and also necessary instructions. The complainant was instructed to pay the bribe amount, which consisted of ten notes of Rs.100/- each in denomination, applied with phenolphthalein powder to accused only on demand and not to touch the same till demanded and was further instructed to give signal by scratching his head by hand on paying the same. P.W.2 Dinkar, who acted as a shadow panch, was instructed to remain with the complainant and to keep watch on the conversation whatsoever may take place between complainant and accused. Co-panch was instructed to accompany the raiding team. A pre-trap panchanama of above facts was drawn on 6/7/1993 between 12 noon and 2 p.m. vide Exh. 26.
6. The members of the raiding team including P.W.8 Pande, Investigating Officer, complainant, both panchas and other staff then proceeded to Sangrampur by vehicle and on parking it at the distance of about 1 km. from the office of the accused, complainant and P.W.2 Dinkar proceeded by walk to the office of accused. However, the accused was not found in the office and arrived within five minutes. It is the case of the prosecution that the accused enquired from the complainant if he had brought Rs.1,000/- to pay him, to which complainant replied in affirmative. The complainant was thereafter directed by the accused to make payment of said amount at his residence on that day at 5.45 p.m.
7. Accordingly, complainant along with P.W.2 Dinkar went to the house of the accused. The complainant gave call, when accused arrived in the sitting room and enquired from the complainant whether he had brought the money to which complainant disclosed in affirmative and requested the accused to close his matter by not issuing any warrant against him. It is the case of the prosecution that accused then went inside the house and came with one diary in his hand and on opening the same, asked the complainant to place the bribe amount in the diary. The complainant accordingly handed over the amount. Accused closed the diary and kept it in his right hand. Complainant thereafter came out of the house and gave the proposed signal, upon which members of the raiding team arrived on the spot and enquired from panch no.2 about the bribe amount to which he disclosed that said amount was accepted by the accused and panch no.2 opened the diary in which said amount of Rs.1000/- was kept. The members of the raiding team on sending complainant out of the house of the accused, sprinkled solution of sodium carbonate on the currency notes, upon which violet colour spots were seen as well as on pages of the diary and had also tallied the serial numbers of the currency notes with the numbers mentioned in pre-trap panchanama, which were found tallying. After calling the complainant inside the sitting room in the house of accused, his pant pocket was over-turned and its lining was dipped in the solution of sodium carbonate when it turned into violet colour. Similarly, the hand wash of complainant also changed colour of sodium carbonate solution into violet. On preparing map of scene of offence, post trap panchanama (Exh. 27-A) was drawn between 7.40 p.m. and 9.40 p.m. in the house of accused.
8. On the basis of report lodged by P.I. Pande, P.W.3 Sheikh Naim, Head Constable, Buckle No.9 of Police Station, Khamgaon Rural registered offences against the accused, which was further investigated by P.I. Pande, during the course of which the Investigating Officer collected the complaint filed by complainant Onkar with Police Station, Tamgaon against Shrikrushna Umbarkar (Exh. 18), notices received by the complainant relating to the dispute pending before accused vide Exhs.19 and 20 and 7/12 extracts of land Gat Nos.122 and 121 at Exhs.23 and 24 respectively. On receipt of sanction from P.W.5 Sudhakar Joshi, Revenue Commissioner, Amravati Division, charge-sheet came to be filed against the accused before the Special Court.
9. Charges were framed against the accused for the offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act of 1988, to which accused denied and claimed to be tried. The learned Special Judge on considering the evidence of witnesses and documents, convicted the accused as aforesaid. Hence, this criminal appeal.
10. Heard Shri Mardikar, learned Senior Counsel for the appellant and Shri Ahirkar, learned Additional Public Prosecutor for the respondent. To effectively evaluate the submissions advanced by the learned Counsel for both the sides, I have scrutinized the evidence and documents with their assistance.
11. P.W.1 Onkar (complainant) has stated that his native place is Sangrampur and was having agricultural land being Gat No.122 admeasuring 65 Ares jointly owned by him and his brother while agricultural land being Gat No.121 is owned by one Shrikrushna Umbarkar. He stated to have sown wheat crop in his field in December 1992 and after crashing the crop, its residues were lying in the field. The adjoining land owner Shrikrushna Umbarkar set fire to the grass on the boundary of his field. However, due to fire, residues lying in the field of complainant also got ablazed. On 25/4/1993 complainant learnt about setting of fire to the residues in his field and, therefore, lodged his report with Sangrampur Police Station against Shrikrushna and on 27/4/1993 lodged report against Shrikrishna with the Tahsil Office, Sangrampur. According to his evidence, as per notice received from the Tahsil Office, he was directed to attend hearing on 5/5/1993. Accordingly he visited the Tahsil Office where accused was working as Naib Tahsildar, who directed him to bring his witnesses and accordingly two witnesses were examined on that day. On the subsequent day of hearing, accused informed complainant that he would impose fine upon him and would also inform the said fact to his office, upon which complainant thought that if said facts are informed to his Office, he would lose his service when accused demanded him Rs.1500/- as bribe for not doing so and at the same time, complainant paid Rs.500/- to the accused at his residence and was given further date in his case. The complainant stated that on each and every date accused was insisting for payment of Rs.1000/- and was threatening him with consequences of non payment of bribe amount, i.e. his imposing fine and informing about pendency of case to the complainant's Department.
12. It is further stated by P.W.2 Onkar that on 3/7/1993 on his visiting the accused, he was asked by the accused as to for how many dates, he would keep attending the matter and on his failure to make payment of Rs.1000/-, he would face the consequences as stated above and on that day, accused further informed complainant that if he fails to make payment of Rs.1000/- on or before 7/7/1993, he would act accordingly and thus, the complainant agreed to pay Rs.1000/- within two days. According to the complainant, since he was not willing to make payment of the said amount, he visited office of Anti Corruption Bureau and lodged his report vide Exh. 17 and had also produced before Authorities of Anti Corruption Bureau copies of report filed by him with Sangrampur Police Station, report filed with the office of accused against Shrikrushna Umbarkar, notice received by him from the office of accused and 7/12 extracts of agricultural land owned by him and Shrikrushna Umbarkar.
13. Complainant's further evidence is pertaining to the activities carried out by the Investigating Officer about his arranging two panch witnesses and about complainant narrating his complaint to the panchas and about panchas reading complaint (Exh. 17) and confirming its contents to be according to the oral version of the complainant. He has further deposed about chemical reaction of phenolphthalein powder when it comes in contact with sodium carbonate solution and about instructions given to him not to touch tainted ten notes of Rs.100/- each in denomination till demanded and to give signal by scratching his head on paying bribe amount to accused. He has further stated about instructions given to P.W.2 Dinkar to accompany him and to watch conversation whatsoever takes place between him and accused.
14. On the point of incident, complainant stated that thereafter he along with members of the raiding team proceeded from the Office of Anti Corruption Bureau, Buldhana in a Police vehicle to Sangrampur. He along with P.W.2 Dinkar alighted at some distance from the office of accused and proceeded by walk to his office at about 2 - 3 p.m. where accused arrived within five minutes of complainant reaching there. Complainant pointed out accused to be the same person to P.W.2 Dinkar by gestures. Complainant further stated that on seeing him, accused enquired from his Clerk whether warrant was issued against the complainant when complainant requested him not to issue warrant, upon which accused enquired from complainant whether he had brought Rs.1000/- to pay him, to which complainant replied in affirmative. The accused then informed complainant not to make payment in the office and instructed him to come to his house. Complainant accordingly came out of the office of accused and was present near godown of Panchayat Samiti and disclosed this fact to panch no.2, who was with the raiding party that accused had directed him to come to his residence at 5.45 p.m.
15. Complainant has further stated that accordingly he along with P.W.2 Dinkar went to the residence of accused and gave call to the accused "Saheb", upon which accused came in the sitting room wearing under-pant and asked complainant how much amount he had brought to which, he replied that he had brought Rs.1000/- and requested him that he should put an end to the matter. According to the complainant, accused then went in an adjoining room and brought one Government diary and on opening the diary, asked complainant to keep said amount in the diary. Complainant accordingly kept bribe amount of Rs.1000/- consisting of ten notes of Rs.100/- each in denomination in the diary by taking out from the right side pocket of his pant. Accused then closed the diary and kept it in the drawing room and thereafter complainant came out of the house and gave signal to the members of the raiding team.
16. Further evidence of the complainant is with reference to members of the raiding team apprehending accused and about inserting his fingers of right hand as well as inner portion of his right side pant pocket in the solution of sodium carbonate, upon which it turned into violet colour.
In the cross-examination, complainant admitted that on 5/5/1993 he was present in the office of accused with reference to enquiry on the basis of cross complaints lodged by him and Shrikrushna Umbarkar and that on that day, statements of witnesses were recorded. Complainant denied that on that day, he filed an application seeking time to file documents on record and his prayer was allowed and the matter was adjourned to 24/5/1993 and has expressed his inability to state whether on 24/5/1993 hearing was adjourned on the request of Shrikrushna Umbarkar. He also expressed his inability to state whether on 5/6/1993 accused was on leave and thus, enquiry was adjourned to 14/6/1993. Complainant denied that on 14/6/1993 he produced medical certificate and sought adjournment upto 3/7/1993 and then on 3/7/1993, he sought further adjournment upto 7/7/1993. Complainant denied that he had formed an opinion that accused was likely to show favour to Shrikrushna Umbarkar.
17. With reference to above cross-examination, Shri Mardikar, learned Senior Counsel for the appellant, has referred to the copy of note-sheet, which came to be seized during the course of investigation and is on record under seizure panchanama (Exh. 30) and forms part of record - marked as Article 8. On perusal of same, in fact, it appears that this document substantiates the material evidence of the complainant, particularly noting dated 3/7/1993, according to which, complainant was found present in the office of accused on that day, when according to the evidence of complainant, accused after his repeated demands for payment of Rs.1,000/-, had threatened that if remaining amount of Rs.1000/- was not paid on or before 7/7/1993, he would impose fine upon the complainant and would also inform said fact to his Department, when complainant agreed to pay the amount to the accused within short period of two days. The note-sheet also bears signature of the complainant establishing his presence in the office of accused on 3/7/1993. That document further corroborates the fact of complainant being present in the office of accused on 5/5/1993 and about recording of evidence of two witnesses from his side. The note-sheet further reveals that the complainant was present in the office of accused for the purpose of hearing on 24/5/1993 and then on 5/6/1993, on which date accused was on leave. As such, even by relying upon this document, accused cannot be said to have established his innocence in any way. On the contrary, above said evidence of the complainant and entries in the note-sheet, referred to above, establish the fact of complainant visiting the office of accused for the purpose of enquiry since 5/5/1993 till 3/7/1993, on which day accused, as a last resort, had directed complainant to make payment of Rs.1,000/- on or before 7/7/1993.
18. In further cross-examination of complainant, it has come on record that accused used to demand amount while sitting in his official chair in the absence of other office staff and only when complainant was present with him. It has further come in the cross-examination of the complainant that on 5/5/1993 accused demanded him bribe for the first time and further date was given in his case.
19. Complainant has denied that he was apprehending that enquiry pending before the accused was likely to end in favour of Shrikrushna Umbarkar and, therefore, had gone to the office of Anti Corruption Bureau and lodged a false report. As such, there is nothing brought on record in the cross-examination of the complainant so as to disbelieve his version. On the contrary, when evidence of P.W.2 Dinkar, first panch, is perused, he appears to be corroborating to the version of the complainant on material aspects of demand and acceptance. When apart from his deposing about fact of his arriving in the office of Anti Corruption Bureau, Buldhana on 6/7/1993 when he along with co-panch attended the office and were introduced to the complainant, who narrated them his complaint and has also verified the contents of complaint (Exh.17) to be recorded as stated orally by the complainant, has further stated about the instructions given to him by the Investigating Officer and to the complainant and about chemical reaction of phenolphthalein powder with sodium carbonate solution. He has also stated about drawing of pre-trap panchanama (Exh. 26) in the office of Anti Corruption Bureau, Buldhana from 12 o'clock in noon to 2 p.m. and has stated that he along with complainant and members of raiding party then proceeded from Anti Corruption Bureau, Buldhana to the office of accused at Sangrampur. He has further stated that he along with complainant reached the office of accused at about 5 p.m. when he arrived at 5.30 p.m. and was pointed out by the complainant to be the same by gestures.
With reference to conversation whatsoever took place at the time of incident between complainant and accused, P.W.2 Dinkar has stated that on his arrival in the office, accused enquired from the complainant whether he had made any arrangement and enquired from his Clerk as to whether warrant was issued against the complainant. At the same time, accused enquired about P.W.2 Dinkar, who was introduced by the complainant as his cousin and then accused enquired from complainant whether he had brought Rs.1,000/- with him, upon which complainant informed accused to finalise the matter by not imposing fine. P.W.2 Dinkar has further stated that accused then accompanying with complainant and himself came out of his office and told complainant to come to his residence in the evening. P.W.2 Dinkar has further stated that he accordingly informed P.W.8 Pande, Investigating Officer and accompanied complainant to the house of accused.
20. P.W.2 Dinkar has further stated that on reaching the house of accused, he was in the inner room and, therefore, complainant gave call from the sitting room where accused arrived and enquired from the complainant if he had brought the money when complainant answered in affirmative. Accused then went in the adjoining room and brought one Government diary and on opening the same, directed complainant to keep the bribe money in that diary. Complainant accordingly took out money from his right side pant pocket and kept it in the diary and gave the proposed signal, upon which members of the raiding team arrived and apprehended the accused.
21. P.W.2 Dinkar has further stated that co-panch along with him verified serial numbers of currency notes recovered from the diary with the serial numbers of the notes mentioned in the pre-trap panchanama (Exh.26) and found them to be tallying. He has further stated about Investigating Officer sprinkling sodium carbonate solution on the pages of the diary wherefrom currency notes were seized, upon which violet colour dots were seen and has also corroborated the evidence of the complainant by stating that on inserting fingers of right hand of the complainant and inner portion of his right side pant pocket in the sodium carbonate solution, it turned violet.
22. In the cross-examination, it was suggested to P.W.2 Dinkar that on the day of incident, at about 3-30 p.m. he along with complainant went to the office of accused, said suggestion is denied by him. Said suggestion appears to have been put to this witness in view of evidence of complainant wherein he has stated to have arrived in the office of accused on the day of incident at about 2-3 p.m. However, in the cross-examination of the complainant, it has come on the record that he might have visited the office of accused at 4.30 p.m. approximately. Even otherwise, said little time gap of 4-4.30 or 5-5.30 p.m. coming in the evidence of complainant and P.W.2 Dinkar does not raise any doubt in the case of prosecution in view of the contents of post trap panchanama (Exh. 27-A) on record, which was commenced from 7.40 p.m. and was concluded at 9.45 p.m. in the house of accused, and also in view of evidence of these two witnesses about accused directing them to reach his house in the evening. In fact, it has come in the evidence of P.W.2 Dinkar that accused had directed complainant to visit his house at 6 p.m. and accordingly, he accompanied complainant to the house of accused. In the cross-examination of P.W.2 Dinkar, it has come on record that when he visited the house of accused with complainant, complainant entered the house while he was standing at the door. In that view of the matter, on perusal of map on record (Exh. 27-B), it is revealed that when the incident of demand and acceptance of bribe took place, P.W.2 Dinkar, who acted as first panch and was accompanying complainant, was at the distance of 1-1/2 feet from complainant while distance between accused and panch was 3-1/2 feet and distance between complainant and accused was 2 feet. In view of short distance as seen from the map, P.W.2 Dinkar can be definitely said to have heard the conversation as stated by him, which took place between complainant and accused at the time of incident.
23. Though it was suggested to P.W.2 Dinkar that complainant planted currency notes in the diary and gave signal to the raiding party, which suggestion was denied by him, said suggestion even otherwise finds no significance in view of specific evidence of the complainant as well as P.W.2 Dinkar when they have stated that after accused arrived in the sitting room in response to the call given by the complainant, he enquired from the complainant if he had brought the amount and on complainant's replying in affirmative went inside and came out with one diary in his hand and on opening it, directed complainant to pay the amount by keeping it in the diary. With reference to this suggestion, contents of the post trap panchanama (Exh. 27-A) also find corroborating to their evidence wherein it is stated that at about 5.50 p.m. complainant and Dinkar entered into house of accused and at about 6 p.m. complainant gave the proposed signal, upon which members of the raiding team entered the house of accused when he was found having in his hand one diary. From further contents of that document, it is revealed that when accused was directed to insert his fingers in the solution of sodium carbonate, since he was having diary in his hand, he kept it on the floor and then inserted his fingers in the solution, which did not turn into violate colour as it is not the case of prosecution that bribe amount was accepted by the accused by his hand. In the circumstances, there is no substance in the case of accused of complainant planting notes in his diary as suggested.
24. On considering evidence of P.W.1 Onkar (complainant) and P.W.2 Dinkar, shadow witness, it is found that evidence of both these witnesses on the point of demand of Rs.1000/- made by the accused and further demand made by the accused on the date of incident, i.e. 7/7/1993 has duly been established since evidence of both these witnesses is convincing to be acted upon. Nothing is brought on record in their cross-examination to discredit their version. Moreover, there is no reason for complainant to falsely implicate the accused.
25. Evidence of P.W.1 Onkar (complainant) corroborates his report (Exh. 17) lodged with the Authorities of Anti Corruption Bureau, Buldhana on 6/7/1993 at 10 A.M. and his application lodged with the accused vide Exh. 19 against Shrikrushna Umbatkar, who is alleged to have set fire on the boundary of his field due to which complainant sustained damages to neem and babul trees and to residues of crashed wheat crop to the extent of Rs.4,000/-. Exh. 20 also corroborates the case of the complainant of accused issuing notice to him to remain present for enquiry initiated on the complaint alleging to have set fire on the boundary. Exh. 22 establishes fact of Gat No.122 owned by complainant having been situated adjoining to the field being Gat No.121 of Shrikrushna Umbarkar, which aspect, even otherwise, is not disputed by the accused along with 7/12 extracts of said two agricultural fields.
26. On further considering evidence of P.W.2 Dinkar, he is suggested that at the time of incident, which took place in the house of accused, in the evening, D.W.1 Akhtar Ahamad Gulam Shabbir Ali was present in the house of accused, which is denied by P.W. 2 Dinkar. Accused, in support of his case, has examined him as defence witness, who has stated that accused is his father-in-law as he got married with his daughter on 13/3/1998. According to his evidence, on the day of incident, he happened to be present in the house of accused as on that day, he had gone to see his daughter for marriage purpose. However, evidence of D.W.1 Akhtar does not inspire confidence at all for the reason that no explanation is put forth by the accused as to how he married with daughter of the accused after lapse of about five years on 13/3/1998, though he claims to have visited the house of accused on the day of incident in the month of July 1993 to see his daughter. He has further deposed that on the day of incident, accused returned from office at 5.30 p.m. and after keeping his diary in the window in front room went inside. At that time, one person came in the sitting room and enquired about the accused. So he went inside and called the accused. Immediately thereafter 5-6 persons came, due to which he went inside and as such, he is not aware as to what happened thereafter in the sitting room.
27. Above evidence of D.W.1 Akhtar also does not inspire confidence when he has stated that after arrival of 5-6 persons, he went inside without ascertaining as to for what purpose, they have arrived, as according to post trap panchanama, it came to be concluded in the sitting room of the accused at 9.40 p.m. As such, evidence of this defence witness that he was not aware of any events, which took place on that day in the house of accused does not inspire confidence at all as it does not appear to be true. In the light of this evidence, I find much substance when it is denied by the complainant that when he entered the house of accused, there was any guest present there, to whom he narrated his work and when said guest went inside, he planted notes in the diary. Above evidence clearly establishes that D.W.1 Akhtar is a got up witness and by examining him, an futile attempt is made on behalf of accused to prove his innocence.
28. Learned Senior Counsel Shri Mardikar for appellant/accused by inviting my attention to the evidence of P.W.8 Pande, Investigating Officer contended that after raid was carried out, accused was asked to give his explanation with regard to the amount recovered from him, which was given by him in his handwriting, as admitted by the Investigating Officer. It was then contended that in spite of said admission on the part of Investigating Officer, there is no reference of the contents of the statement whatsoever given by the accused in post trap panchanama (Exh.27-A) nor such document forms part of the charge-sheet. In this context learned Counsel for the appellant relied on the judgment in the case of Bismillakha s/o Salarkha Pathan vs. State of Maharashtra (2004 ALL MR (Cri) 1341) wherein also statements of two accused were recorded immediately after the trap, which were reduced into writing and signed by both the panchas as well as Police Inspector. However, contents of what was mentioned in the statements were not found in the panchanama as those were separate documents and were not brought before the trial Court. Observing this to be one more important circumstance in favour of the accused, doubt was raised in the case of the prosecution. However, in the appeal in hand, this is a sole circumstance unlike one more important circumstance as in the case of Bismillakha (cited supra). Except this fact of prosecution not bringing on record explanation of accused, there is ample other convincing evidence on record of the complainant and panch witnesses supported with documents on record, which establishes guilt of the accused beyond reasonable doubt.
29. Learned Senior Counsel Shri Mardikar for the appellant also relied upon the judgment in the case of Meena (Smt.) w/o Balwant Hemke vs. State of Maharashtra (2000) 5 SCC 21} wherein admittedly the currency notes in question were not recovered from the person or from the table drawer, but when trap party arrived, were found on the pad of the table and seized from that place only. The question, therefore, was as to whether appellant accepted it and placed it on the table or that the currency note fell on the pad of the table in the process of appellant refusing to receive the same by pushing away the hands of P.W.1 when P.W.1 attempted to thrust into her hands. In the background of above facts involved in that case, the appeal came to be allowed as there was no essential corroboration on the aspect as to what transpired at the time of alleged incident of demand and acceptance of bribe and there were witnesses, who deposed that P.W.1 tried to force into hands of accused a currency note, which she turned down by pushing it away.
30. Learned Senior Counsel Shri Mardikar further relied upon the case of M.K. Harshan vs. State of Kerala {(1996) 11 SCC 720} wherein also in a trap, accused came to be held and tainted money was recovered from the drawer in his office, of which accused pleaded ignorance while it is the case of the prosecution that complainant had kept tainted money in the drawer on the direction of the accused. Finding that evidence of complainant and other prosecution witnesses is contradictory to each other on this aspect and since there was no clinching or corroborative evidence to the version of the complainant, accused was held entitled to the benefit of doubt.
In view of the law relied for accused as aforesaid and since the facts in appeal are totally distinguishing, said Authorities cannot be applied for in favour of the appellant.
31. On the other hand, learned Additional Public Prosecutor Shri Ahirkar in the given set of circumstances involved in the present case has relied upon the judgment of the Apex Court in the case of Dhanvantrai Balwantrai Desai vs. State of Maharashtra (AIR 1964 SC 575) wherein it has been held that on establishing that accused accepted money, which was not legal remuneration, presumption can be said to be raised, which is required to be rebutted by explanation, which must be true and not merely plausible. In the appeal in hand, futile attempt is made on behalf of accused to explain the circumstances under which bribe money was recovered from the diary of the accused by suggesting to complainant as well as to P.W.2 Dinkar that complainant finding that accused was inside room, planted notes in the diary, which was kept in the window in the sitting room. However, on considering above evidence, the explanation put forth on behalf of appellant/accused does not appear to be true and as such, accused cannot be said to have rebutted the same.
32. Evidence of P.W.3 Sheikh Naim, Head Constable corroborates the case of complainant of cross complaint lodged by him and Shrikrushna Umbarkar when according to the evidence of this witness, he was entrusted with both cross complaints to be enquired into with reference to setting fire on boundary of agricultural fields. He has further deposed about his receiving report (Exh. 52) from P.W.8 Pande, Investigating Officer on the basis of which he registered first information report (Exh. 32) against the accused.
33. P.W.4 Madhav Kambale, A.S.I. has stated to have received report of complainant on 25/4/1993 in respect of setting on fire to boundary of his field and on the basis of the same, has registered first information report vide Exh. 34.
34. Prosecution has examined P.W.5 Sudhakar Joshi, Divisional Commissioner of Amravati Division being Appointing Authority of accused being Naib Tahsildar working in Revenue Department on the day of incident, who has proved on record sanction at Exh. 40. There is no serious challenge on this aspect of case of the prosecution.
35. Considering the evidence of complainant as well as independent witness - P.W.2 Dinkar and the documents as referred above, prosecution is said to have established charges levelled against the appellant beyond reasonable doubt. I, therefore, find no substance in the criminal appeal.
36. Learned Senior Counsel Shri Mardikar for appellant, in the alternative, has placed reliance on the judgment in the case of Satpal Kapoor vs. State of Punjab (AIR 1996 SC 107) wherein on the basis of affidavit of accused, he was stated to be of 60 years of his age, who was convicted for the offence punishable under Section 5(2) of the Prevention of Corruption Act and was further found to be an angina patient suffering from coronary disease requiring medical attention. Keeping these factors in view, his sentence was altered to four months simple imprisonment while sentence of fine was sustained. In the appeal in hand, admittedly nothing is placed on record. With reference to age of accused as on date, it appears that on the date of framing of charge on 18/4/2001, accused was aged 62 years old. As such, accused must be aged about 75 years. In that view of the matter, even in the absence of any medical certificate or affidavit with regard to physical ailment, if any, suffered by him, on considering age of appellant/accused, I am of the view that in the greater interest of justice, order of trial Court needs to be altered insofar as substantive sentence imposed upon accused is concerned by partly allowing the criminal appeal.
37. In the result, the criminal appeal is partly allowed. The conviction of appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 as recorded by the learned trial Court is maintained by modifying the order of sentence imposed upon the accused as follows :
The appellant/accused is directed to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-, in default of payment of fine, to suffer rigoruos imprisonment for three months for the offence punishable under Section 7 of the Act of 1988 and to suffer rigorous imprisonment for one year and to pay fine of Rs.500/-, in default of payment of fine, to suffer rigorous imprisonment for three months for the offence under Section 13(1)(d) punishable under Section 13(2) of the Act of 1988. Both the substantive sentences to run concurrently.
At this stage, Shri Mardikar, learned Senior Counsel for the appellant, prays for grant of eight weeks' time to appellant to surrender contending that he is an aged person and suffering from physical ailments.
In that view of the matter, six weeks' time is granted to the appellant/accused to surrender before trial Court.