Judgment:
V.R. Kingaonkar, J.
1. Challenge in this appeal is to judgement rendered by learned Special Judge, Jalna in Special Case No. 8 of 1994 whereby appellant came to be convicted for offence punishable under Section 13(1)(d) read with Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for one (1) year and to pay fine of Rs. 200/-, in default to suffer rigorous imprisonment for two (2) months on first count and rigorous imprisonment for six (6) months and fine of Rs. 100/-, in default to suffer rigorous imprisonment for one (1) month on the second count.
2. The appellant was working as an Assistant Police Prosecutor in the Courts at Jalna. There is no dispute about the fact that he was working as Public Servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988. Complainant Amrutlal Bhurewal was involved as an accused in a Criminal Case (S.T.C. No. 2973/1990), which was pending in the Court No. 4 of Judicial Magistrate (F.C.), Jalna. The said criminal case was due for final hearing. It was fixed on board of 4th March, 1992.
3. The prosecution case, stated briefly, is that the appellant was assigned work of the Court of 4th Judicial Magistrate (F.C.), Jalna at the relevant time. He was representing the prosecution in the said criminal case filed against Amrutlal (complainant). On 4th March, 1992, complainant Amrutlal attended the Court of Judicial Magistrate as an accused. The date of hearing was adjourned to 17th March, 1992. The appellant met the complainant - Amrutlal outside the Court and took him to the canteen for having a cup of tea. The appellant, during course of conversation with the complainant, represented that he would manage the witnesses in the criminal case (S.T.C. No. 2973/1990) to secure acquittal if an amount of Rs. 500/- would be paid to him. The complainant expressed his inability to pay such amount. The appellant told him that the amount can be shared by him and his brother to the extent of half each. Both of them were involved as accused persons in the said criminal case. The complainant agreed to pay Rs. 250/- for himself and Rs. 250/- for his brother on the next date of hearing.
4. In the morning of 17th March, 1992, complainant Amrutlal approached Anti Corruption Bureau (A.C.B.) at Jalna. He lodged a complaint about demand for illegal gratification made by the appellant. Thereupon, Dy.S.P. Kawle secured presence of two (2) panch witnesses, who were employees of Divisional Soil Conservation office. He thereafter introduced the panch witnesses to complainant - Amrutlal. He demonstrated to the complainant and the panchas as to how anthracene powder sparkles under the ultraviolet lamp and how currency notes smeared with anthracene powder would be used for giving the bribe money to the appellant. Then, five (5) currency notes of Rs. 100/- denomination each were coated with anthracene powder in presence of panchas and were handed over to complainant Amrutlal. A pre-trap panchanama was prepared.
5. The Dy. S.P. (A.C.B.) instructed one of the panchas by name Thorat to accompany complainant Amrutlal throughout the period till the tainted currency notes were given to the appellant. Whereas the another panch by name Deshpande was instructed to remain with the raiding party members in the proximity of the place where bribe money would be tendered. The complainant and panch Thorat went ahead at old District Court building in an auto-rickshaw. The complainant searched for the appellant, but could not immediately locate him. The appellant was conducting a matter in the Court of Judicial Magistrate near office of the Sub Divisional Magistrate and, therefore, both of them waited till his work was over. They contacted him after he came out of the Court. All of them went to a canteen situated behind old S.P. office. The appellant asked complainant Amrutlal whether he had brought the amount of Rs. 500/-. He wanted some soft drink which was not available in that canteen and, therefore, they went to a nearby tea stall. At tea stall, the tainted currency notes were handed over by the complainant (Amrutlal) to the appellant in pursuance to the demand. The appellant accepted the amount by his right hand and put the same in his left hand. By using his left hand, he shoved the currency notes in the left pocket of his coat. The complainant immediately gave signal to the raiding party members by untying a kerchief wrapped around his head. Immediately, P.I. Shri Shaikh and P.S.I. Shri Shinde rushed to the spot and firmly held both hands of the appellant. Another panch Shri Deshpande and Dy.S.P. Shri Kawale and other members of the raiding party followed them to the spot. The appellant was taken to a pendal in the nearby premises of old Zilla Parishad building. A blanket was procured to create artificial darkness. Complainant Amrutlal was instructed to leave the pendal. Both the hands of the appellant were examined under ultraviolet lamp. There was bluish shining on the tips of right thumb and tips of other fingers of both the hands. So also, there were bluish blisters at some place on his palm and the left hand. The tainted currency notes were removed from pocket of the coat. They were seized after examining them under ultraviolet lamp. The numbers of the tainted currency notes tallied with the numbers of the currency notes in the pre-trap panchanama. The tainted currency notes indicated bluish shining under the ultraviolet lamp. The inner portion of the left side pocket of the coat of the appellant was also having bluish shining when examined under ultraviolet lamp. A post-trap panchanama was thereafter drawn then and there. The appellant was arrested. He was taken to Kadim Jalna Police Station. A formal complaint was lodged against him by Dy.S.P. Shri Kawale. The necessary investigation was thereafter carried out. The relevant investigation papers were forwarded to Director General of A.C.B. for according sanction to the prosecution of the appellant. The Director General submitted report to the Government. The then Joint Secretary, Government of Maharashtra, Home Department (PW Mrs. Khanolkar) accorded necessary sanction for prosecution of the appellant. He was chargesheeted, thereafter, for the offence punishable under Section 7, 12 and 13(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
6. A charge (Exh-21) was framed against the appellant for the offences mentioned in the chargesheet. He denied truth into the charges. His defence is that complainant Amrutlal is a criminal and has been accused in number of criminal cases, and that in one of such criminal cases, said Amrutlal was convicted by the Court in which he (appellant) conducted the prosecution case. According to the appellant, complainant Amrutlal was aggrieved due to such conviction and nurtured grudge against him. He further submitted that in yet another criminal case, one Gopal who is close relative of complainant Amrutlal, was acquitted by the Criminal Court, but an appeal was preferred to the High Court against such acquittal at his instance and, hence, the complainant bore animosity against him. He denied that he was prosecutor in criminal case (STC No. 2973/1990), which was proceeding against the complainant in the Court of IVth Judicial Magistrate (F.C.), Jalna. He denied that he demanded Rs. 500/- from the complainant as illegal gratification to ensure acquittal of the complainant and his brother in the context of said criminal case. It is the version of the appellant that he alone had gone to take a cup of tea at the tea stall near the compound of old Zilla Parishad building where the complainant came from behind stealthily and shoved something in left pocket of his coat. So, in order to see as to what was put in his coat pocket, he searched by his left hand the contents. At the nick of time, members of the raiding party rushed to the spot and held both his hands. He was annoyed and asked them why his hands were caught and attempted to rescue himself. He asserted that while rescuing his left hand the anthrasene powder might have been touched by fingers of the right hand. He pleaded, therefore, that it was a planned trap case by the complainant on account of personal vendetta. He also challenged validity of the sanction order issued by the Joint Secretary of the Home Department, State of Maharashtra. On these premises, he sought acquittal from the charges levelled against him.
7. At trial, the prosecution examined six (6) witnesses in support of its case and produced certain documents on record. The learned Special Judge came to conclusion that demand for illegal gratification was duly proved. The learned Special Judge further held that the appellant accepted the illegal gratification in the relevant noon at the place of tea stall near the Court premises. The learned Special Judge dislodged the defence version. The learned Special Judge, therefore, convicted and sentenced the appellant as stated at the outset. Feeling aggrieved, he has come up in appeal.
8. In this appeal, the appellant has filed an application seeking leave to produce certain documents in order to show that he was unconcerned with the criminal work pending in the 4th Court of Judicial Magistrate (F.C.) at Jalna. He has produced office copy of the communication in this behalf. He urged to allow production of such documents in order to prove the plea that he was not incharge of the criminal case pending against complainant Amrutlal in the 4th Court of Judicial Magistrate (F.C.) at Jalna. On the other hand, the learned A.P.P. has produced certain documents to rebut such allegations.
9. Mr. Kulkarni, learned advocate for the appellant, would submit that the appellant was not assigned charge of Court No. 4 and, hence, was unconcerned with the criminal case instituted against complainant - PW Amrutlal. He would submit that burden is not discharged by prosecution to prove that the appellant was capable of managing witnesses in the criminal case filed against complainant PW - Amrutlal. He would submit that unless the appellant was in a position to oblige the complainant - PW Amrutlal, there could be no possibility of agreement to pay any illegal gratification. He would point out that the criminal case filed against complainant PW Amrutlal and his brother Nandlal could not be otherwise tampered with because the complainant in that case was a Police Constable. He pointed out certain discrepancies in the versions of complainant PW Amrutlal and panch witness - PW Thorat. He strenuously argued that presumption arising on account of recovery of the money from the appellant's `pocket' would stand rebutted on account of attending circumstances and discrepancies in the versions of complainant and panch. He invited my attention to admission of the complainant - PW Amrutlal regarding immediate conduct of the appellant. He also invited my attention to the fact that various criminal cases were filed against the complainant - PW Amrutlal and he was ex-Externee. He would further submit that PW Thorat is not an independent witness and he should be treated as an interested witness. He argued that versions of the complainant and panch witness are unreliable and untrustworthy. He would further submit that the sanction is invalid due to non-application of mind. He urged to allow the appeal and acquit the appellant from the charges. On the other hand, learned A.P.P. Mr. Umakant Patil supported the impugned judgement.
10. Before I proceed to embark upon appreciation of evidence as regards question of demand for illegal gratification and acceptance of the tainted currency notes, it would be necessary to see whether the appellant was incharge of Court No. 4 where the criminal case (S.T.C. No. 2973/1990) was pending. The recitals of post-trap panchanama (Exh-32) go to show that after recovery of the tainted currency notes, the members of raiding party, another panch Shri Deshpande and the appellant went to office of Senior Police Prosecutor. The Senior Police Prosecutor, on inquiry, furnished office copy of the office order No. 8944 dated 29th June, 1991, issued by the Superintendent of Police. The xerox copy thereof was then obtained and seized for the purpose of investigation. The xerox copy indicated that below paragraph No. 3, name of the appellant is shown with endorsement that he would look after the work of Court No. 4 of the Judicial Magistrate (F.C.). This xerox copy was obtained on the same day soon after the recovery of tainted currency notes from possession of the appellant. The appellant did not then disclose that he was not in charge of criminal cases pending in 4th Court of the Judicial Magistrate. There could be no reason for manipulation of such endorsement.
11. Coupled with immediate revelation from the copy of the office order, as indicated above, version of PW5 Shri Jinturkar, Senior Police Prosecutor reveals that in the month of March, 1992, the appellant was working as Police Prosecutor in 4th Court of Judicial Magistrate (F.C.) at Jalna. He states that on 17th March, 1992, around 4 to 5 p.m., Police Inspector Shri Khan of Anti Corruption Bureau and panch Shri Deshpande visited his office. He was informed about the incident. He provided xerox copy (Exh-41) of the office order in context of assignment of work to Police Prosecutors. His version thus corroborates part of the post-trap panchanama (Exh-32) in regard to immediate seizure of xerox copy of the office order (Exh-41) from his office. There is no serious lacunae in the testimony of PW Jinturkar. Nor he has any animus against the appellant. He admits, no doubt, that there is heavy criminal litigation in Jalna district. The criminal work was distributed in nine (9) Courts of Judicial Magistrates. He admits that as per actual work done by the Assistant Police Prosecutor, he gave police statement that the appellant was appointed to look after the Court of 4th Judicial Magistrate (F.C.). He admits that as per office order (Exh-41), Court of 4th and 5th Judicial Magistrate (F.C.) were shown as allotted to Shri Khardekar. He, however, states that the said contents are incorrect. It is important to note that the office order dated 29th June, 1991 (Exh-46) is duly corroborated by PW6 Dy.S.P. Shri Kawle. Paragraph No. 3 of the said order specifically shows that the appellant was directed to look after the work of Court No. 4.
12. Though some documents are filed alongwith an application in this Court to show that the figure '7' was interpolated as '4' in the office order, yet, it may be said that there is no satisfactory reason coming forward to allow the production of such documents. For, the respondent/State has also produced certain office copies of the documents. It appears that the appellant made a representation to change his assignment. He categorically stated that he was incharge of Courts No. 4 to 9 of the Judicial Magistrate (F.C.). The revelation as claimed by the appellant is not new one and can be demolished by the documentary evidence of the State. So, I do not find it necessary to allow production of the documents by the appellant as well as by the State. Though in a fit case power to allow additional evidence may be exercised, yet, the present one is not a fit case to do so. This is not the stage to re-open the trial on a short question which is concluded on basis of satisfactory evidence led by the prosecution in the Trial Court. The application of the appellant is, therefore, dismissed.
13. At this juncture, it is important to note that the appellant was specifically asked in his statement under Section 313 of the Criminal Procedure Code about the version of complainant PW Amrutlal that he and his brother were facing the criminal case (STC No. 2973/1990) in the 4th Court of Judicial Magistrate (F.C.) at Jalna. The appellant stated that he did not know about it. It is stated by the appellant in reply to question No. 270 that he conducted many criminal cases against PW Amrutlal. He further stated that in one criminal case, PW Amrutlal was convicted by the Court of Chief Judicial Magistrate. He further categorically stated that the complainant (PW Amrutlal) thought that if he (appellant) would appear in criminal case (STC No. 2973/1990) for the prosecution, then he (complainant) would be convicted and, hence, he (appellant) has been falsely framed by the latter. He further states that he had conducted one criminal case (R.C.C. No. 155/1989) against accused Gopal who is relative of PW Amrutlal, and the Court acquitted said Gopal, but he recommended appeal to the High Court against the order of acquittal. According to the appellant, the complainant (PW Amrutlal) was disturbed due to his such actions and, therefore, filed false case against him. All along, he never stated that he was not incharge of Court No. 4. He did not state that he had no concern with the matters pending in Court No. 4. He did not state that work of 4th Court of Judicial Magistrate (F.C.) was being looked after by another Prosecutor Shri Khardekar though there is some confusion created due to relevant entry in the office order (Exh-41). There is no substantial reason for PW Shri Jinturkar, Senior Police Prosecutor, to state that the appellant was incharge of Court No. 4 of the Judicial Magistrate (F.C.), at the relevant time.
14. Apart from the fact that the appellant was directed to look after work of 4th Court of the Judicial Magistrate (F.C.), it is highly improbable that the complainant laboured under impression that if the appellant would conduct criminal case (STC No. 2973/1990) on behalf of the prosecution, then there would be conviction. Why the complainant should entertain such hypothesis if the appellant had no nexus with the said criminal case There appears no answer coming forth. The appellant did not explain as to when he had conducted criminal case against the complainant in the Court of Chief Judicial Magistrate and how could it be that the complainant was irked due to recommendation of criminal appeal against order of acquittal in criminal case bearing R.C.C. No. 155/1989. These were stale and remote instances. In fact, in the proximity of the period of the alleged incident, there was no serious reason for the complainant (PW Amrutlal) to frame the appellant in a false case.
15. Even assuming that the appellant was not assigned the work to look after the criminal cases pending in the 4th Court of Judicial Magistrate (F.C.), then also it hardly makes any difference. For, the appellant could pose himself as a man of utility to sabotage the criminal charge in relation to that criminal case notwithstanding he himself was not required to conduct the same. The appellant was previously working in R.P.T.C. (Regional Police Training Centre) at Jalna. The complaint in the criminal case bearing S.T.C. No. 2973/1990 was filed by one of the Police Constable. Therefore, the appellant could pose his potential to influence the complainant and the witnesses in order to ensure acquittal of complainant PW Amrutlal and his brother. His additional statement under Section 313 of the Criminal Procedure Code also does not show that he was not concerned with the criminal case bearing S.T.C. No. 2973/1990. Nor such a fact is suggested to PW Amrutlal during course of cross-examination. It has come on record that complainant PW Amrutlal was represented by Shri Abdul Majid, advocate in the said criminal case. The appellant could have examined Shri Abdul Majid, advocate in order to show that someone else was the Prosecutor working in the 4th Court of Judicial Magistrate (F.C.) during the relevant period. No such effort was made. In my opinion, the appellant has tried to take advantage of the incorrect description of figure '4' in the office order (Exh-41). However, the version of PW Shri Jinturkar and other evidence on record would clearly establish that the appellant was incharge Prosecutor for Court No. 4 of the Judicial Magistrate (F.C.) at Jalna during the relevant period.
16. Now, I shall advert to the evidence of PW Amrutlal and PW Thorat in order to find out whether alleged demand for illegal gratification and the acceptance of tainted currency notes by the appellant has been proved. There is evidence of PW1 Amrutlal to show that he and his elder brother Nandlal were facing trial in criminal case bearing S.T.C. No. 2973/1990 in the 4th Court of Judicial Magistrate (F.C.). He states that on 4th March, 1992, the criminal case was adjourned to 17th March, 1992. The appellant met him outside the Court after the criminal case was adjourned on 4th March, 1992. His version purports to show that the appellant invited him to partake a cup of tea. They went to the canteen behind the Court building for such purpose. His version shows that the appellant inquired as to how many cases were pending against him and told that if he would give Rs. 500/-, then the said criminal case will be disposed of as early as possible by managing the witnesses. His version shows that the appellant assured him that he would get acquitted if an amount of Rs. 500/- is paid. He expressed inability to pay such amount. The appellant then told him that he should give Rs. 250/- for himself and additional Rs. 250/- for his brother Nandlal. His version further reveals that the appellant asked him to pay whatever amount he had at that time. PW Amrutlal further states that he told the appellant that he had no money on that day and assured that he would try to give the amount on next date if he could get it. The appellant then asked him to bring Rs. 500/- on the next date i.e. 17th March, 1992.
17. The version of PW Amrutlal further shows that on 17th March, 1992, he visited office of Anti Corruption Bureau at Jalna alongwith an amount of Rs. 500/-. He lodged complaint (Exh-27). Thereafter, Dy. S.P. Shri Kawle called two (2) panchas. He and the panch witnesses were explained as to how the trap was to be laid. His version shows that an amount of Rs. 500/- was taken from him by Dy.S.P. Shri Kawle and, thereafter, five (5) currency notes were smeared with anthrecene powder. The currency notes indicated bluish blisters. Number of the currency notes were noted down and a pre-trap panchanama was drawn. His version reveals that the Officer of the Anti Corruption Bureau asked panch PW Thorat to keep vigil and see whether he (complainant) was forcibly giving the tainted currency notes to the appellant. Thus, the panch was not only to act as a mute spectator. the panch was also instructed to report if perforce. The tainted currency notes were delivered by PW Amrutlal to the appellant.
18. The versions of PW Amrutlal and PW2 Thorat (panch) would show that they went to the Court building in an auto-rickshaw. They searched him in the Courts. They reached in a Court by side of the office of Sub Divisional Magistrate. PW Amrutlal noticed that appellant was working in that Court. So, both of them awaited upto about 4 - 4.10 p.m. outside the said Court. Their versions purport to show that the appellant saw them and they together went to canteen. The appellant then asked PW Amrutlal whether he had brought the amount as told by him and then the latter told him that he had brought the said amount. Their versions further show that they left the canteen premises because there was no soft-drink available. They went to a tea-stall (tapri). They sat on a bench under a temporary shed in front of the tea-stall. Their versions purport to show that the appellant asked PW Amrutlal whether he had brought the money. The appellant further asked how much amount was brought. The versions of both these witnesses go to show that PW Amrutlal told the appellant that he had brought Rs. 500/-. The amount was demanded by the appellant. Thereafter, PW Amrutlal took out the tainted currency notes from his pocket by right hand and held them before the appellant. The amount was accepted by the appellant by his right hand and was transferred to the left hand. The amount was thereafter kept by him in left side pocket of the coat.
19. The versions of both the above witnesses go to show that no sooner the tainted currency notes were accepted by the appellant, PW Amrutlal gave signal to the raiding party by removing the handkerchief tied around his head. The members of the raiding party immediately rushed there. Their versions show that PSI Shaikh caught right hand of the appellant and inquired with panch Thorat as to whether PW Amurtlal gave money to the appellant. Another police officer held his left hand. On confirmation, the appellant was taken to a place in a pendal installed within the compound of Zilla Parishad building.
20. True, PW Amurtlal was involved in many criminal cases. Externment proceedings were also drawn against him in the past. He admits that Gopal Abewal is his maternal nephew. His version reveals, no doubt, that he is a court bird. In many civil and criminal cases, somehow or the other, he is involved. He had filed complaint against Civil Surgeon to the Anti Corruption Bureau alleging that without payment of bribe amount, the Civil Surgeon was not ready to issue injury certificates to him. His version reveals that in 1982, he was prosecuted alongwith said Goapl for an offence alleged by one complainant Nandlal. The version of PW Amrutlal leaves no manner of doubt that he is a litigant with notorious reputation.
21. Considering the bad reputation of PW Amrutlal, it would be necessary to approach his evidence with great care and caution. At the same time, his version cannot be discarded only because he has bad reputation for the notorious activities alleged against him. He admits that when the members of the raiding party reached the tea stall, right hand of the appellant was first caught and thereafter immediately his left hand was caught and then the appellant shouted and asked what was his offence and why he was caught. An attempt is made to capitalize such reaction of the appellant to show his innocence. One cannot be oblivious of the fact that the appellant was accustomed with the Court work. He was very well aware of his position as Court Officer. So, in the Court premises, he would not have tolerated anyone holding his hands. The reaction cannot be unnatural for a Court Officer. In any case, only due to such angry reaction of the appellant, it cannot be inferred that he was innocent and, hence, the annoyance immediately sprang out.
22. It is suggested to PW Amrutlal that he had clandestinely kept something in the appellant's coat pocket. It is also suggested that in order to ascertain what was put inside the pocket, the appellant had put his left hand in the pocket and then the raiding party members arrived. Both suggestions are denied by PW Amrutlal.
23. There is no dispute about the fact that the tainted currency notes were immediately recovered from possession of the appellant. The numbers of the five (5) tainted currency notes duly tallied with the numbers of the currency notes shown in the pre-trap panchanama (Exh-31). The fact that the tainted currency notes indicated bluish blisters when examined under the ultraviolet lamp, is also duly proved. There is also no dispute about the fact that the thumb of right palm and the remaining four (4) fingers at the tip of the appellant shoved bluish blisters when examined under the ultraviolet lamp. So also, on the left hand fingers and the thumb and on the palms, bluish blisters were noticed under the ultraviolet lamp. The tainted currency notes were removed by panch No. 2 Shri Deshpande under instructions of Dy. S.P. Shri Kawale. The left side coat pocket and the currency notes bore blisters of bluish colour when examined under ultraviolet lamp. The black coat of the appellant was seized under the post-trap panchanama (Exh-32). There is no denial to these taletelling circumstances.
24. The specific defence of the appellant is that PW Amrutlal had put something in the left side pocket of his coat, without his knowledge. He asserted that he got a feeling that something was put inside his left pocket of the coat and, therefore, he was attempting to verify what was inside the pocket. So, he had put his left hand in the coat's pocket. By that time, the police arrived and caught his right hand. He asked as to why he was caught and what offence he had committed. He was trying to rescue his right hand by means of left hand and, therefore, possibly, the anthracene powder might have been smeared on fingers of his right palm.
25. At this juncture, it is pertinent to note that PW2 Thorat is an independent witness. His version reveals that the appellant inquired with the complainant (PW Amrutlal) whether the amount was brought. His version reveals that the talk regarding demand of money took place in the canteen. He states further that in his presence, the appellant accepted the amount of Rs. 500/- from the complainant. He states that the appellant received the tainted currency notes by his right hand, thereafter, had put them in his right palm and shoved them inside the left pocket of his coat. Thus, testimony of PW Thorat rules out any possibility of Clandestine thrusting of the currency notes in the left pocket of the appellant's coat by the complainant. He fully supports the version of the complainant as regards demand and acceptance of the amount of Rs. 500/- by the appellant.
26. The version of PW Thorat reveals that there are certain discrepancies in his version and version of PW Amrutlal as regards the place where the demand was made by the appellant at the first time. He admits that in the canteen behind the control room, the appellant did not demand money from the complainant. He admits further that on way, from the said canteen till reaching the tea stall, near the Zilla Parishad building, the appellant did not make any inquiry with the complainant about the money nor had demanded the money. His version shows that after the signal was given by the complainant, PSI Shaikh reached the spot and first held the right hand of the appellant and thereafter,n Shri Shinde caught the left hand. He further states that the appellant did not shout. According to him, he had not heard the appellant saying that what was his offence and why his hands were caught. The version of PW Amrutlal, however, shows that the appellant immediately shouted as to why his hands were caught and what was his offence.
27. Mr. Kulkarni, would submit that version of PW Thorat cannot be accepted in view of the discrepancies appearing in his version and the version of the complainant (PW Amrutlal). I find it difficult to countenance such argument. The Apex Court in 'Shankerbhai Laljibhai Rot v. State of Gujarat, Laljibhai Rot v. State of Gujarat, Laljibhai Rot v. State of Gujarat (2004) 13 S.C.C. 487', held that minor variance asasas regards the mode of demand would not be of consequence to corrode the credible and cogent evidence of the witnesses. The Apex Court further held that in absence of anything to show that any difficulty or irregularity in sanction caused failure of justice, plea relating to validity of sanction could not be entertained. The minor discrepancies are bound to occur when the witnesses are examined after lapse of considerable time gap. The complainant and PW Thorat were examined before the learned Special Judge after a period of more than three and half (3 and 1/2) years of the alleged incident. It is of common knowledge that human mind is likely to miss certain minor details after such a time-gap. The discrepancies appearing in the version of PW Thorat cannot be regarded as significant, so much so that his version itself is rendered unacceptable. The discrepancies are natural and minor. I find it difficult, therefore, to dislodge his version.
28. Mr. Kulkarni, contended that PW Thorat is an employee of the Government and, hence, is an interested witness. I may usefully refer to 'State of v. Baswan Singh : 1958CriLJ976 ', wherein the Apex Court held thus :
Rao Shiv Bahadur Singh v. State of V.P. : 1954CriLJ910 did not lay down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration. The correct rule is this : if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as evidence of accomplices is limited; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness he cannot claim any higher status and must be treated as any other interested witness.
29. Significantly, the prosecution examined PW3 Radhakisan, who runs a street-side tea-stall, near old building of Zilla Parishad. His version reveals that at about 4 to 4.30 p.m., the appellant alongwith two (2) persons visited his tea-stall. They sat on a bench. The appellant gave order for two (2) cups of golden tea which was to be distributed in three (3) cups. His version purports to show that while he was preparing tea, two (2) persons came at the tea-stall and caught hands of the appellant. They went to the premises of Zilla Parishad office and sat under a pendal. His version shows that under the shed of pendal, a panchanama was prepared. His back was towards the customers at the time of the incident and there was a stove of large burner in his front. He could not hear conversation between the customers at the tea-stall. There is omission in his police statement regarding the fact that the appellant gave order of two (2) cups of golden tea which was to be distributed in three (3) cups. His version belies defence version that the appellant alone went to the tea stall at that time.
30. Considering the version of PW Thorat, it will have to be said that the defence of the appellant as regards putting of the tainted currency notes in his left side coat pocket without his knowledge, will have to be disbelieved. It need not be reiterated that version of PW Thorat, unequivocally, corroborates prosecution case as regards demand of the amount by the appellant at the place of tea-stall and acceptance thereof from the complainant. Once it is found that the appellant accepted the tainted currency notes, then presumption would arise as regards his acceptance of illegal gratification. The Apex Court in 'State of Madhya Pradesh v. Shambhu Dayal Nagar AIR SCW 5737', held that where fact of recovery of bribe amount from upper pocket of shirt of accused has been fully corroborated by complainant and also by two independent witnesses, then finding of the High Court that complainant had forced his currency notes in pocket of the accused (respondent therein) was erroneous. The Apex Court referred to 'Hazari Lal v. State (Delhi Administration) : 1980CriLJ564 , wherein it is observed that where the recovery of money coupled with other circumstances lead to the conclusion that the respondent received gratification from some person, the Court would certainly draw a presumption under Setion 4 (1) of the Prevention of Corruption Act.
31. In the present case, there is hardly any corroboration to the version of the defence that the tainted currency notes were put in the pocket of the appellant coat without his knowledge and, therefore, he was making attempt to verify as to what was put inside the pocket. The version of the tea stall owner (PW Radhakisan) fully establishes the fact that the appellant together with the complainant and PW Thorat went to the tea stall. There was no question of PW Amrutlal (complainant) stealthily going from behind of the appellant for the purpose of putting the tainted currency notes in his left pocket when the trio together had gone to partake tea at the tea-stall. Nor does PW Radhakisan lend support to such version of the defence. The fact that fingers of both the hands of the appellant were found to bear bluish blisters as well as his left hand pocket of the coat bore similar blisters, is indicative of his acceptance of the tainted currency notes.
32. Mr. Kulkarni would submit that versions of the witnesses PW Amrutlal and PW Thorat are contradictory in regard to immediate reaction of the appellant after his hands were held by the members of raiding party and, therefore, the case of prosecution is unreliable. So also, he pointed out that the appellant was engaged in Court work, but the complainant was searching from place to place to meet him. It is argued, therefore, that the complainant wanted to frame the appellant in the trap case. Mere minor contradictions in the statements of the witnesses cannot make the prosecution case unacceptable. In 'State of A.P. v. S. Janardhana : (2005)1SCC360 ', the Apex Court held that the High Court was not justified in reversing conviction of the accused No. 1 - S. Janardhana Rao, who was a Sessions Judge, merely on the basis of certain contradictions in evidence of witnesses, though they supported the prosecution case in all material particulars. In my opinion, in the present case, version of PW Thorat corroborates the case of prosecution in all material particulars and cannot be thrown overboard on account of minor contradictions or discrepancies appearing in his statement.
33. Mr. Kulkarni, would submit that version of PW Thorat cannot be relied upon only because nothing is found against him to show his interested nature. Reliance is placed on observations in 'Najukrao v. State of Maharashtra 1995 (1) Cri 75'. A Division Bench of this Court observed :
It is neither a rule of law, nor of prudence that if nothing is found against witnesses to show that they were interested or inimically disposed towards the accused, then his evidence as such has to be accepted on its face value and the Court has to base its findings and conclusions only on their evidence without assessing the probabilities of their evidence or without considering the other factors and features of the case as would be evident on the materials on record....
The observations referred hereinabove are of general character. There cannot be any precedent in the matter of appreciation of evidence. The intrinsic worth of the version tendered by the witness is required to be assessed in each case.
34. Mr. Kulkarni seeks to rely on certain observations in 'State of Maharashtra v. Manohar s/o Raghoba Patil 2005 ALL MR (Cri) 428'. In the given case, the Court came to conclusion that there was no proof of actual demand and acceptance of currency notes because the witness of trap, who had accompanied the complainant in the cabin of the accused, was asked to leave the cabin at the relevant time. The possibility of plantation of currency notes was found to be reasonable and probable and, therefore, order of acquittal rendered by the Trial Court was not interfered with. The case wherein appeal is against acquittal, is to be viewed by applying different yardstick in as-much-as interference in the order of acquittal is unwarranted when two (2) views are possible. Mr. Kulkarni argued that burden on the appellant to prove his innocence stands discharged due to his immediate conduct. He invited my attention to certain observations in 'State v. Minaketan Patnaik : AIR1952Ori267 '. In the given case, a. In the given case, a. In the given case, a Division Bench of Orissa High Court observed that where the evidence regarding the demand and acceptance of a bribe leaves room for doubt, and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. With due respect, the observations in the given case are not applicable to the fact situation of the present case. Mr. Kulkarni further seeks to rely on ' V.D. Jhingan v. State of Uttar Pradesh : [1966]3SCR736 ', wherein it is held that the burden of proof lying on the accused under Section 4(1) of the Prevention of Corruption Act, 1947 will be satisfied if he establishes his case by preponderance of probabilities as is done by a party in civil proceedings. There cannot be duality of opinion that burden on the accused is not heavy. The question really is whether the appellant, in the present case, has discharged such burden of proof by showing preponderance of probabilities.
35. As stated before, the appellant together went with the complainant and PW Thorat to the tea-stall of PW Radhakisan. They sat together on a bench. His solitary version, without any other tangible evidence except his outburst as to why his hands were caught, by itself is totally insufficient to displace the presumption available against him. In 'Girja Prasad By LRs v. State of M.P. (2007) 7 SCC 625', the Apex Court observed that where no evidence was adduced by accused to rebut the presumption raised under the law and he merely took the defence of 'total denial' and 'false implication', the doctrine of 'preponderance of probability' had no application. The relevant observations may be usefully quoted as follows :
31. In the case on hand, as observed earlier, both the courts below recorded a positive finding that the accused accepted an amount of Rs. 200. In our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of 'preponderance of probability' also had no application. The trial court was, therefore, wrong in not invoking Section 4 and raising presumption. The trial court was also wrong in discarding the evidence of PW1 Anup Kumar, the complainant and PW 10 S.K. Tiwari, Inspector observing that they were 'interested' witnesses and their testimony could not be relied upon. If it is so, in our judgement, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged.
36. The prosecution case is duly corroborated by PW6 Dy.S.P. Kawale. Nothing of much importance could be gathered from his cross-examination. It is argued by learned advocate for the appellant that PW Amrutlal is a notorious person and there was prior enmity between the appellant and PW Dy.S.P. Kawale and, therefore, there is more probability of false trap laid by them. I do not agree. No doubt, PW Amrutlal is involved in many criminal and civil cases. One cannot be oblivious of the fact that otherwise who else than a person involved in criminal cases is likely to seek favours from a Police Prosecutor The Police Prosecutors day-in and day-out come in contact with persons involved in criminal cases. The integrity of such Court Officers must be beyond reproach. Here is the Police Prosecutor who took the complainant (PW Amrutlal) to the tea-stall as if they were on friendly terms. His conduct does not show that he maintained neutrality and impartiality. The testimony of PW Amrutlal cannot be rejected only because he was involved in many a cases. That was the reason, in fact, the appellant could expect him to be squeezed for earning easy money. The version of PW Dy.S.P. Kawale also cannot be thrown overboard because subsequently, his relative was involved in an anti corruption case. There was no substantial reason for Dy. S.P. Kawale to frame the appellant in a false case.
37. The version of PW4 Nalini, Joint Secretary to the Home Department reveals that she perused the relevant investigation papers before she reached conclusion that a prima facie case for prosecution of the appellant was made out. She corroborates the sanction order (Exh-38). Her version shows that the State Government is appointing authority for the Assistant Public Prosecutors. The salary of the Assistant Public Prosecutors is paid by the office of the Director and Inspector General of Police. She admits that the Director and Inspector General of Police was competent authority to remove the Police Prosecutor. However, she being Joint Secretary, attached to the Home Department, was of higher rank than that of Director and Inspector General of Police. Her version reveals that she personally examined the papers containing the complaint and statements of witnesses. She further admits that the sanction order is issued by her with the approval of the Chief Minister. Thus, the sanction order (Exh-38) is validly issued after due application of mind by the competent authority. There is nothing on record to show that PW Nalini did not apply her mind to the relevant papers. The sanction order cannot be, therefore, faulted with.
38. The Trial Court duly considered the relevant evidence and the material on record. I am in general agreement with the findings of the Trial Court. I am of the opinion that the evidence on record is sufficient to prove the guilt of the appellant.
39. So far as the quantum of sentence is concerned, it cannot be ignored that cancer of corruption has spread over its tentacles in the social life to such an extent that belief of common man on the institutional work is obliterated. The social fabric is destroyed by corrupt practices in the public service. Not only that such corruption causes loss of faith in public administration, but it also demoralizes bunch of honest officers in the concerned Institution. The efficiency in public service would improve only when the public servants exhibit honesty in day-today affairs. The appellant was an officer of the Court and a public servant. He failed the trust reposed in him by the prosecution department as well as by the Court, due to his acceptance of illegal gratification to manipulate the witnesses in order to secure acquittal of the complainant - PW Amrutlal. Hence, the appellant does not deserve any leniency in the matter of sentence.
40. There cannot be duality of opinion that corrupt practices adopted by members of the Bar or members of the prosecution wing tarnish image of the judicial system as such. Edmund Burke aptly said :
Among a people generally corrupt liberty cannot long exist.
The corrupt influences gradually errode the strength of democratic Institutions and take away credibility of the organs in the Government. The cancer of corruption is more dangerous to judicial system which is the Institution in which a common man has still certain amount of faith. The instances like present one give serious jolt to the faith of litigants in the judicial system. Obviously, the sentence awarded to the appellant cannot be interfered with. The learned Special Judge has awarded minimum sentence.
41. For the reasons afore-stated, I do not find any merit in the appeal. The appeal deserves dismissal. The appeal is accordingly dismissed. The impugned judgement of conviction and sentence rendered by the learned Special Judge in Special Case No. 8/1994 is confirmed. The appellant Shivdas s/o Dashrath Jadhav to surrender to the bail immediately.