Vasant Vs. The State of Maharashtra through Anti Corruption Department, Civil Lines and Another - Court Judgment

Oral Judgment:

1. This is an appeal preferred against the judgment and order passed on29/11/2002 by Judge of the Special Court under Prevention of Corruption Act in Special Case No.9 of 1993 thereby convicting the present appellant, who was accused No.1, of the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Name of respondent No.2 deleted as per order dtd.7/2/2003.

Prevention of Corruption Act, 1988 (hereinafter called as “the P.C. Act”, for short).

2. Briefly stated, facts of the case are as under.:

2.1 Complainant Prashant Rajendra Wankhede was proprietor of a bakery which he ran under the name and style as, “Golden Bakery”. The appellant-accused No.1 had assisted the complainant in obtaining loan of Rs.34,000/- from a Bank for the purpose of his bakery. The complainant thought that his bakery got a permanent registration from the District Industries Centre, Nagpur (“D.I.C., Nagpur, for short). The appellant was then working as Industries Inspector with D.I.C., Nagpur. The complainant, therefore, filed an application on 29/10/1990 with D.I.C., Nagpur for allotting permanent registration to his bakery and he also approached the appellant for obtaining the registration early. The appellant, however, demanded an amount of Rs.200/- as bribe for expediting the work. The complainant on the same day learnt that the work of allotment of permanent registration number (hereinafter referred to as “PRN” for short) had been transferred to another Inspector, one Ashwinikumar Lad (accused No.2). Therefore, complainant had a word with the said Inspector, who also told that an amount of Rs.200/- would be required to be paid to him as bribe for doing the work. Upon some negotiation, Ashwinikumar Lad agreed to accept an amount of Rs.200/- jointly for himself as well as for Vasant Likhar, the appellant herein, who was occupying the table situated next to the table of Ashwinikumar Lad in the same office.

2.2 On 05/11/1990, the complainant visited the office of D.I.C., Nagpur in order to inquire about his work. Ashwinikumar Lad was not present in the office while the appellant was. On an inquiry by the complainant, the appellant told him that an amount of Rs.200/would be required to be paid by the complainant and then asked him to bring that amount on 12/11/1990. According to the complainant, the appellant had also told him that he and Ashwinikumar Lad were one and the same person and that the demand of Rs.200/- was a demand jointly made by both of them. The complainant was unwilling to pay the bribe and, therefore, he approached the officials of Anti Corruption Bureau, Nagpur and filed a complaint with them. The officials of the Anti Corruption Bureau decided to entrap the appellant and co-accused and, therefore, services of panch witnesses were requisitioned and necessary formalities for laying of the trap were completed. Ultimately, the appellant was ensnared in the trap at about 5.10 p.m. of 12/11/1990 at Hotel Brij. It was stated by the complainant as well as the panch witness No.1 accompanying him that on demand being made by the appellant, an amount of Rs.200/- consisting of four currency notes of Rs.50/- denomination each were handed over by the complainant to the appellant, who accepted those currency notes by his left hand and put them in the left side chest pocket of the shirt worn by the appellant at that time. The tainted currency notes were also recovered. Necessary panchanama was prepared and after recording of relevant facts, statements of witnesses were recorded and chargesheet came to be filed against the present appellant and his co-accused for the offences punishable under under Section 7 and 13(2) read with Section 13(1)(d) of the P.C. Act.

2.3. On merits of the case, learned Special Judge found that these offences could not be proved against the co-accused Ashwinikumar Lad and, therefore, acquitted him of both the offences, However, learned Special Judge found the appellant as guilty of the said offences and convicted him and sentenced him to suffer rigorous imprisonment for one year for each of the offences together with file of Rs.2,000/- for each of the offences and default sentence of six months by judgment and order passed on 29/11/2002. Being aggrieved by the same, the appellant is before this Court in the appeal.

3. Learned Counsel for the appellant submits that at the relevant time no official work was pending with the appellant and to the knowledge of the complainant, whatever work was there, it was to be done not by the present appellant, but by his co-accused Ashiwinikumar Lad. He submits that there are admission given by the witnesses of the prosecution in this regard and, therefore, the necessary ingredients required for proving of the offence of illegal obtaining of gratification as a motive or reward for official work has not been convincingly proved by the prosecution and as such the appellant deserves to be acquitted of the offence punishable under Section 7 of the P.C. Act. He also submits that even the acceptance of the bribe amount or valuable thing has not been proved beyond reasonable doubt by the prosecution and, therefore, even the other offence punishable under Section 13(2) of the P.C. Act has not been proved by the prosecution against the appellant.

4. Learned A.P.P. for the State submits that acceptance of the tainted currency notes has been proved beyond reasonable doubt by the prosecution, which can be seen from the evidence of the complainant as well as the evidence of panch witness No.1 and, therefore, by resorting to Section 20 presumption, it can be safely inferred that the appellant committed both the offences with which he was charged in this case.

5. With the assistance of learned Counsel for the appellant and learned A.P.P., I have gone through the impugned judgment and order and also the evidence of the prosecution witnesses. Upon perusal of the record of the case, I find that there is great substance in the argument of learned Counsel for the appellant and no merit in the argument of learned A.P.P. for the State.

6. For commission of offence punishable under Section 7 of the P.C. Act, it is necessary that the public servant should have accepted or obtained any gratification, which is not by way of legal remuneration, as a motive or reward for doing or for not doing any official act. This section thus requires that the gratification should have been obtained through illegal means and should have been obtained for doing some official work in the nature of either positive or negative act. Let us, therefore, examine the prosecution evidence in order to satisfy ourselves as to whether or not these essential ingredients have been proved by the prosecution.

7. The official work, according to the prosecution case, was in the nature of grant of PRN for the bakery of the complainant. According to the complainant, he had made an application for allotment of PRN and had also approached the appellant as well as co-accused on 29/10/1990 and 05/11/1990 for granting and also expediting allotment of PRN and that on both occasions, a demand had been made for payment of bribe of Rs.200/- from him by both the accused persons including the present appellant.

8. Such prosecution case would make one to examine if any application for allotment of PRN was made in the first place or not However, the prosecution evidence in this regard is very sketchy and doubtful in nature. In the complaint filed by the complainant, which is at Exh.50, the complainant states that he had submitted the relevant papers regarding permanent registration to the D.I.C., Nagpur on 29/10/1990. In his examination-in-chief before the Court, the complainant, P.W.2 Prashant Wankhede, states that he had handed over that application to the applicant. Then, in cross-examination once again, he states that he had submitted that application to the office of D.I.C., Nagpur. He also admits that he did not obtain any acknowledgment in that regard from the said office. The evidence of the Investigating Officer, P.W.4 Anand Deshmukh shows that his enquiry had revealed that no application for allotment of permanent registration had been filed by the complainant. He had received a written reply in this regard from the office of D.I.C., Nagpur.

9. This evidence of the prosecution clearly shows that as a matter of fact, no application had been moved by the complainant regarding grant of permanent registration to him. That is the reason why, it appears, the complainant, P.W.2 Prashant Wankhede, is giving contradictory answers in his testimony before the Court. Firstly, he vaguely states that he had submitted the application to D.I.C., Nagpur then he states that he had handed over that application to the present applicant for doing needful in the matter. Learned A.P.P., at this stage, has fairly submitted before the Court that even the search of the house of the appellant conducted by the Investigating Officer did not lead to recovery and seizure of any application or papers relating to allotment of PRN to the bakery of the complainant. This would only show that the complainant had never made any application for grant of PRN and he was only visiting the office of D.I.C., Nagpur with a view to find out some short cut for expeditiously obtaining PRN bypassing usual procedure of submitting of an application at a counter known as Sigma counter, opened for the purpose, which procedure was well known to everybody interested in obtaining PRN from the D.I.C. That means no official work of the complainant P.W.2 Prashant was pending with the appellant and he only wanted to quickly get the PRN somehow or the other and as his efforts to obtain the same by ignoring proper procedure were not bearing any fruits, probably he got annoyed and filed a false complaint in the matter and also tried to falsely trap the appellant. After all, it cannot be forgotten that demand of money for doing or not doing an official act is what lies at the root of Section 7 of P.C. Act offence. If no official work was pending with this appellant, it is doubtful, if the appellant would make any demand for payment of bribe, and illogical, if the complainant would bow to such demand by agreeing to pay the bribe. In this regard, I would like to draw support from the case of RakeshKapoor Vs. State of Himachal Pradesh – 2013 ALL MR (Cri) 324 (S.C.) wherein Hon'ble Supreme Court observed that when order granting licence was ready, demand of accused appeared highly improbable. Therefore, I find that prosecution case for commission of offence punishable under Section 7 of the P. C. Act by the appellant does not stand proved beyond reasonable doubt. Learned Special Judge has ignored this material aspect and has committed a serious error of law in recording a finding of conviction of the appellant for the offence punishable under Section 7 of the P.C. Act.

10. As regards acceptance of tainted currency notes by the appellant, I find that even on this aspect, the evidence of the prosecution is not at all convincing in order to enable the Court to draw a presumption under Section 20 of the P.C. Act. The acceptance of the bribe amount can be proved through the evidence of the complainant or the panch witness, who witnessed the transaction and also through the recovery of the amount from the accused. In this case, the complainant says that he had tendered an amount of Rs.200/- to the appellant by his right hand and the appellant had accepted the amount by the left hand and then kept it in his left side pocket of his shirt. The panch witness, P.W.3 Gangadhar, however, admits that when the right hand fingers of the complainant were dipped in sodium carbonate solution, the solution did not change its colour although the complainant, P.W.2 Prashant says that when his right hand fingers were dipped in that solution, the solution had turned purple. The complainant P.W.2 Prashant is also confused about who took out the tainted currency notes from shirt pocket of the appellant. Firstly, he says ACB officer took them out and subsequently says that appellant himself took them out and gave them to ACB officer. P.W.3 Gangadhar, the panch No.1, says they were taken out by second panch, Chouke. There is variance between the version of the complainant and the version of the first panch, who all the while, according to the prosecution, accompanied the complainant and also was a witness to what had transpired between the complainant and the present appellant at Hotel Brij. This variance of versions creates a doubt about tendering of bribe amount and it's acceptance which ought to have been cleared by the prosecution by bringing on record further evidence. The best evidence in this regard could have been of second panch, one Chouke, who was witness to the preparation of the panchanama which noted various facts including the fact of turning or not turning of sodium carbonate solution purple. His evidence was material even for considering the defence of the appellant. It was that the complainant had forcibly thrust the tainted currency notes in the chest pocket of the appellant and thereupon the complainant had thrown them out of his pocket. However, said Chouke, an independent witness was not examined, which left the doubt about acceptance of tainted currency notes uncleared. His non-examination as a prosecution witness also meant defence taken by the appellant remaining untested for strength of it's probability. In fact, evidence of second panch, Chouke, was the best evidence to prove acceptance of bribe by the appellant and, therefore, his non-examination would make me draw an adverse inference against the prosecution that he was not examined because he would have falsified complainant's case and supported the defence of the appellant. This makes me find that the prosecution has failed to prove beyond reasonable doubt recovery of the tainted currency notes from the possession of the appellant and if that is the case, presumption under Section 20 of the P.C. Act, I would say, disagreeing with the learned A.P.P., cannot be drawn. This would also mean that the acceptance of a valuable thing or bribe amount illegally or abusing his official position by the appellant for doing an official act has not been proved beyond reasonable doubt by the prosecution. As such, there is no obtaining of any amount by corrupt or illegal means and so even the offence punishable under Section 13(2) of the P.C. Act has not been proved. This would make it clear that for this reason also, the offence punishable under Section 7 of the P.C. Act stands not proved.

11. Learned Counsel for the appellant has pointed out another significant aspect of the case. He submits that basically in this case even the demand of bribe amount has not been proved by the prosecution. I find substance in his argument. The evidence of P.W.2 Prashant-complainant shows that on 29/10/1990 as well as on 05/11/1990, the appellant together with co-accused Ashwinikumar Lad had demanded bribe amount of Rs.500/- but on the day on which trap was laid and declared successful by the Investigating Officer, as admitted by the complainant himself, there was no demand made by the appellant. This is evident from the admission given by the complainant himself during his cross-examination. He also admits that he knew on 1/11/1990 that the appellant had been transferred. The relevant admissions given by the complainant are reproduced as under.:

“...It is true that nobody demanded me money on 12/11/90. No one came at my place on 12/11/90 to demand money. It is true that I was knowing on 12/11/90 that Mr. Likhar is transferred...”

The above referred facts are also endorsed by panch witness No.1 P.W.3 Gangadhar. He has admitted that the demand of bribe was not made by the appellant in his presence.

12. Thus, the above referred admission would only show that on the date on which the trap was made, actually there was no demand made by the appellant and if that is the case, it cannot be said that the appellant had voluntarily accepted some thing from the complainant as a motive or reward for doing some official work. This also probalises the defence of the appellant that the possibility of the complainant thrusting the tainted currency notes in the shirt pocket of the appellant against the will of the appellant has not been ruled out in this case. The doubt created in this regard could have been clarified only after the second panch was examined as prosecution witness but that being not the case, I find that even the aspect of demand of bribe money has not been proved beyond reasonable doubt by the prosecution.

13. In the result, I find that learned Special Judge has misdirected herself in appreciating the evidence and the result was erroneous recording of finding of guilt of the appellant for the offences punishable under Sections 7 and 13(2) of the P. C. Act and consequently wrongly sentencing him to suffer for one year each. The judgment and order, therefore, cannot be sustained in law and deserve to be quashed and set aside by acquitting the appellant of the offences with which he is charged in this case.

14. Accordingly, the appeal is allowed.

The impugned judgment and order are hereby quashed and set aside.

The appellant is acquitted of the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

His bail bonds are discharged.

Fine amount be refunded to the appellant.