Shri Atul Naik Son of Madhukar Naik Vs. State Through Public Prosecutor - Court Judgment

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criminal - bribery - demand and acceptance of bribe - presumption as to acceptance of bribe - section 20 of prevention of corruption act, 1988 - appellant-accused was convicted of the offence of bribery by trial court - appellant-challenged his conviction on ground that prosecution has produced no evidence of demand having been made by the accused and in absence of such evidence no conviction was possible - hence, present appeal - held, the premise to be established on facts for drawing a presumption is that there was payment acceptance of gratification and once that premise is established, the inference to be drawn is that the gratification was accepted as the motive or reward for doing or attempting to do any official act - in the present case, the accused was found in possession of the money paid to him by pw1/suraj and as such there was no other option but to raise the presumption in favour of the prosecution and against the accused - the accused has failed to discharge the said presumption - appeal dismissed criminal - bribery - demand and acceptance of bribe - evidence by investigating officer - reliability of evidence - held, evidence of the investigating officer cannot be branded as highly interested on the ground that they want that the accused are convicted - such a presumption runs counter to the well recognised principle that prima facie public servants much be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case - appeal dismissed. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - state of rajasthan air 1975 sc 1432 wherein the apex court observed that in the background of the high court's findings that it had not been proved that the appellant had demanded any bribe from mohan lal, they did not consider it safe to sustain its finding on the point of payment of the bribe by the complainant to the appellant on the testimony of pw9 alone when the evidence of pw2 is not admissible on the point. the said pw1/suraj had clearly stated that, the accused was demanding rs. sections 7 as well as section 13 uses the expression such as accepts, obtains, agrees to accept or attempts to obtain any gratification other than legal remuneration. these are sad things which are happening and are known to every body, with the level of corruption in our public services. the presence of phenolphthalein powder on both the hands of the accused which is proved from the hand wash collected from him and as stated by the police officers, clearly shows that the accused accepted the said notes handed over to him by the complainant and it is more than probable that the accused took them in his right hand and transferred to his left with a view to pocket them but had to throw them because of the arrival of the police. state of rajasthan (1985) 1 scc 28, has stated that the practice of using phenolphthalein powder for treatment of currency notes is invoked for well over three decades and it is used with a view to prove the passing of a bribe. the apex court in a similar situation like ours in hazari lal v. the accused failed to explain how his hands were tainted with phenolphthalein and the amount of rs. the accused has failed to discharge the said presumption. mathew air 1978 sc 1571, the supreme court held that the evidence of the investigating officer cannot be discarded merely on the ground that he was interested in success of the investigation. such a presumption runs counter to the well recognised principle that prima facie public servants much be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.n.a. britto, j.1. this appeal has been filed by the accused who had been charged, tried, convicted and sentenced in special case no. 2 of 2003 by the learned special judge, margao, by judgment dated 27.11.2008 under section 7 and section 13(1)(d) and (2) read with section 13(2) of the prevention of corruption act, 1988. the accused has been sentenced under section 7 of the said act to undergo r.i. for a period of one year and to pay fine of rs. 10,000/-in default to undergo imprisonment for a term of three months and under section 13(1)(d)(2) read with section 13(2) to undergo r.i. for a period of one year and to pay a fine of rs. 10,000/-in default to undergo further r.i. for a period of three months. both the sentences have been ordered to run concurrently.2. the allegation against the accused is that on 8.10.2002 at about 5.30 p.m. at old market, margao, the accused being the secretary of the village panchayat of the davorlim-dicarpale, salcette, goa, and as such a public servant, demanded and accepted a bribe of rs. 10,000/-other than legal remuneration from suraj d'souza of pereira real estate for the purpose of issuing an occupancy certificate for the construction carried out by them which was approved to be given by the village panchayat of which he was the secretary, by resolution dated 28.2.02 and thereby the accused committed an offence punishable under section 7 and section 13(1)(d) read with section 13(2) of the prevention of corruption act, 1988.3. the accused pleaded not guilty and claimed to be tried.4. in support of the charge prosecution examined eleven witnesses which included pio pereira/pw3 of pereira real estate, his employee the said suraj d'souza/pw1, ramnath pai/pw2 who acted as panch witness to the raid conducted by the p.i. shri lavu mamledar/pw11.5. the case of the accused was one of denial. the accused filed a written statement to supplement his statement recorded under section 313 of the code (code of criminal procedure, 1973).6. the learned special judge, after considering the evidence, and various submissions made on behalf of the accused, came to the conclusion that the evidence on record had borne out that the accused had made the said demand with the complainant or to put it otherwise, had accepted or agreed to obtain from the complainant gratification other than legal remuneration as a reward for doing the official act of issuance of the occupancy certificate despite the fact that the accused had earlier been notified of his transfer to another panchayat and that it did not lay in the mouth of the defence to canvass that the action of the accused to obtain or agree to obtain any gratification other than legal remuneration for himself by itself did not amount to criminal miscoduct by a public servant and that it was amply established that the tainted money was found by the police on the floor of the complainant's car when the accused was called out of the car and which would not dilute the effect of the charge proved against him.7. before considering the submissions made by shri arun bras de sa, learned counsel appearing on behalf of the accused and those of shri ferreira, learned public prosecutor appearing on behalf of the complainant, it is necessary to record certain facts which are admitted or which in any event have got to be considered as proved beyond reasonable doubt against the accused, and they are as follows:1. the accused was the secretary of the said village panchayat of davorlim-dicarpale and was transferred to village panchayat of curtorim in place of smt. manzrekar who was relieved by the b.d.o. smt. mazarello/pw9 on 3.10.02 and who reported to the village panchayat of davorlim-dicarpale on 4.10.02 but could not take a formal charge from the accused as the accused did not report to the said office from 4.10.02 till the accused was arrested on 8.10.02.2. the occupancy certificate for mystical rose apartments constructed by pw3/pio pereira was decided to be given by the village panchayat by resolution dated 22.8.02 after completing all formalities and it was the accused as the secretary of the said village panchayat who had to issue it and in fact at his instructions it was prepared by ms. sardessai/pw8 and handed over to him.3. the accused met pw1/suraj d'souza, the site engineer of the said pereira real estate on 8.10.02 at about 5.30 p.m. not in the panchayat office or in the office of pereira real estate but as agreed between them in the old market where the raid was conducted.4. both the hands of the accused when dipped in sodium carbonate solution, the solution had turned pink which was transferred in glass bottles, duly packed and sealed and sent to c.f.s.l. and the report obtained showed that there was phenolphthalein in it.8. according to the prosecution, pw1/suraj d'souza handed over cash of rs. 10,000/-to the accused and the accused accepted the same and after he gave a signal and on arrival of the police party, that the accused dropped the money inside the car. according to the accused he only shook hands with pw1/suraj d'souza and went away and as he was mounting on his motorcycle that he was arrested by the police. according to the accused, the occupancy certificate could be given only after calculations were done towards the payment of house tax, water and light, but these were to be made by none other than himself.9. did the accused call pw1 suraj d'souza to old market, margao, only to shake hands with him or did he come to accept rs. 10,000/-as earlier agreed between them and indeed accepted the same?10. then there is section 20 of the act which provides for presumption that when it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. as regards this provision, the constitution bench of the apex court, in dhanvantrai v. state of maharashtra : air 1964 sc 575 has stated that the presumption, is a presumption of law and therefore it is obligatory on the court to raise this presumption in every case, brought under section 4 (now under section 20) of the prevention of corruption act and the court has no choice in the matter once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. the presumption can be rebutted but the burden resting on the accused in such a case would not be as light as it is where a presumption is under section 114 of the evidence act and it cannot be discharged by mere reason of the fact that the explanation offered by the accused is reasonable and probable but it must further be shown that the explanation is true one and it has got to be rebutted by proof and not by a bare explanation which is merely plausible. a fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists and unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.11. pw3 pio pereira in his evidence before the court stated that he was the managing partner of m/s. pereira real estates and that he had undertaken construction of a low budget housing scheme for which he had obtained necessary license from the village panchayat in december, 2000, and had completed the construction in july, 2002 and had submitted the file for occupancy certificate in the village panchayat of davorlim-dicarpale sometime in july, 2002. he had further stated that the town and country planning department had granted technical approval and the file was before the panchayat and he had approached the local panch member by name avelino rocha who had later informed him that the file was approved and that he should meet the panchayat secretary for necessary follow up action and he was personally pursuing the office formalities by deputing his site engineer shri suraj d'souza who had told him that the accused demanded money to clear the file and that he personally did not pursue the matter with the secretary since the demand could be more from him. he stated that the said suraj had requested the secretary to forward the file to the b.d.o. for payment of infrastructure dues and an amount of rs. 46,000/-was paid and the file was resubmitted to the village panchayat in the first week of september, 2007. he stated that the accused had made the demand of rs. 15,000/from the said suraj d'souza and the said suraj d'souza had told him that he had negotiated with the accused the demand to rs. 10,000/-but he was reluctant to give the said amount as he had cleared all the necessary formalities and since there was no progress in processing his papers, he had approached the c.i.d., crime branch sometime in the first week of october, 2002, and was told by the officials to record the conversation between the accused and the said suraj, and, accordingly the said suraj had recorded the conversation between him and the accused once in his office and once between suraj d'souza and the accused at old market, regarding the demand for money but he was not present at the time of the second recording. he stated that these recordings were following the complaint made by him to the crime branch and the said suraj d'souza had handed over the recording made on the micro cassette to the crime branch, panaji and they were told at the crime branch to fix a date to hand over the money and they would lay a trap accordingly. he has also stated that the money for laying the trap of rs. 10,000/-in denomination of rs. 500/-was given by him to the crime branch, though he was physically not present when the actual raid was conducted by the crime branch. he further stated that the company's santro car bearing registration no. ga-02-j-1738 was placed by him at the disposal of the said suraj d'souza to be used during the said trap. he had identified the file which was submitted to the panchayat i.e. exhibit 24. in cross examination he has stated that the recording of the conversation between suraj and the accused was in his office but between them alone though he was present in the office at that time. he admitted that he was not in position to state as to who was the person whom suraj d'souza spoke while recording the first conversation in his office. he denied the suggestion that the call by suraj d'souza was made to discuss the meeting in the context of his dues outstanding from him and further denied the suggestion that the accused had not demanded money otherwise than the legal dues from the said suraj d'souza.12. pw1/suraj d'souza stated that he was working as the site engineer for the said m/s. pereira real estates and he knew the accused who was working as secretary of the village panchayat of davorlim dicarpale in the year 2002 and he used to visit the said panchayat in connection with the official work pertaining to the said pereira real estates and had submitted the file for obtaining the occupancy certificate for the construction. he further stated that the panchayat office had referred the file to the town planning authority which had given them approval and thereafter the file was placed before the panchayat at its meeting and the panchayat had passed a resolution to issue necessary occupancy certificate. he further stated that he used to approach the panchayat secretary i.e. the accused and the accused was demanding rs. 15,000/-as bribe amount for issuing the occupancy certificate and thereafter the accused reduced the demand from rs. 15,000/-to rs. 10,000/-and he filed the complaint to the superintendent of police, anti corruption bureau, panaji, on 8.10.02. he further stated that before filing the said complaint he had recorded the conversation between him and the accused on two different dates i.e. on 4.10.02 and 5.10.02 in connection with the demand for the bribe, on a tape recorder and he had handed over the two tapes on which the conversation was recorded to the police at the time of filing of the complaint.13. the said two micro cassettes were seized under panchanama in the presence of pw2 ramnath pai and the conversation was reduced in writing which alongwith the panchanama was produced at exhibit-16.14. pw1 suraj d'souza further stated that the first cassette contained the conversation between him and the accused and the second is a tele recording which he did from his land phone and the mobile of the accused. he further stated that after he had handed over the said two cassettes, the police heard the conversation and seized the said two cassettes under panchanama and after completing the formalities, the police party alongwith the panchanama, finger print expert and himself proceeded to hotel imperial at margao on margao-quepem road where the second panchanama was prepared and during the second panchanama the finger print expert explained to them the procedure for the trap and he handed over rs. 10,000/-to the police to be used as bribe amount being twenty notes of rs. 500/-each and the police noted the serial numbers of the said notes in the panchanama and the finger print expert shri s. naik applied powder on the said currency notes of rs. 10,000/-and put them in his left side shirt pocket and before that his personal search was taken and he had with him a bunch of keys, rs. 15,000/-in cash, mobile phone and another amount of rs. 970/-and he was explained the entire formality of the trap and was explained about pre-signal he was required to give, after the bribe amount was accepted by the accused, and, was told to put on the right side indicator lights after the accused accepted the bribe amount and at about 5.30 pm on that day i.e. 8.10.02 he called the accused on his mobile phone, from his mobile phone and requested the accused to contact him near manush bar, old market, immediately and the accused came near manush bar within ten minutes of contacting him, on his mobile. he stated that he was in santro car bearing said no. ga-02-j-1738 belonging to his company and the accused on reaching that spot came and sat in his car and he asked the accused for the file whereupon the accused demanded cash of rs. 10,000/-from him and he handed over the said rs. 10,000/-to the accused in the denomination of rs. 500/-and the accused accepted the same. he stated that the said money which he had given to the accused was earlier given to him by the police and was carried in his shirt pocket. he stated that he put on the right light signal of the car, as per the instructions earlier given to him by the police, and no sooner he gave the signal the police came and surrounded his vehicle and the police then called upon the accused to come out of the car at which time the accused dropped the money inside the car and the accused was trembling at that time when he came out of the vehicle and the police asked the accused for the money, and the accused in turn pointed to the money thrown by him earlier in the car. according to him, the police picked up the money from the car and also took finger print test of the accused. the finger print expert was present at the time and the police then took personal search of the accused and found about fifteen items on his person namely bunch of keys, atm card, wallet and other articles which he did not recall and out of the fifteen items the police attached thirteen and returned two to the accused being his driving license and the wallet and the police also took his personal search and found cash of rs. 15,000/-in his trouser pocket and rs. 970/-in his wallet and an audio voice recorder and some other items which he did not recall and all the items were returned to him by the police. he stated that the police drew the sketch at the spot alongwith the panchanama which concluded at about 20.30 hours. he identified the twenty notes though he did not remember their serial numbers and other details. he also identified the other articles and so also exhibit-24/m.o. 20 being the file containing the documents. in cross examination he stated that he was working for the said pereira constructions from the year 2002. he stated that the project comprises of three buildings but did not recall the total built up area of all the three buildings. at the relevant time, he stated, that the second building was completed and the occupancy certificate was sought in respect of the second building which had twenty four flats of single and double bedrooms. he stated that it was possible that the built up area of each of the three buildings would be 200 sq. metres but further stated that he was not aware that the rates were rs. 5 to 10 per sq. metres for issuance of the occupancy certificate. he admitted that besides his complaint exhibit 11, no separate statement was recorded and further admitted that he had not lodged any complaint from 4th to 7th october, 2002, and for the first time he lodged complaint on 8.10.02. he denied the suggestion that he had not made a mention of the amount demanded by the accused in the complaint exhibit-11 or that the figure of rs. 10,000/-was subsequently added. he admitted that there was an overwriting in the date on the complaint but stated that was done at the same time when he wrote the complaint. he stated that he did not know whether there was any resolution adopted by the panchayat either on 22nd or 27th august, 2002. he admitted that pw3/mr. pereira was present when the conversation between the accused and him was recorded on 4.10.02 and admitted that he had told the accused that he must meet him casually and the accused during the first conversation had not shown any willingness to meet him. he admitted that during the first conversation he told the accused that his employer whom he referred to as sir had given rs. 5,000/-to him to be handed over to the accused. he further stated that there is no specific statement in the first conversation that the accused had demanded rs. 10,000/-for himself but there was a statement by him to bring the money on the next day. he further admitted that there is record in the said statement at his instance that he would give the money the next morning and that he would give his file to him thereafter. he further stated that he did not recall if the accused had called him in the office, in connection with the payment of license fees and further admitted that the license fees for all the three buildings worked out to be more than rs. 30,000/-. he admitted that he had told the accused that he wants the file somehow kashai bashen (by all means). he further admitted that the accused had answered that he should come in the morning and that he would even process the dues of the lights. he further admitted that as per the second recorded conversation, he had offered rs. 5,000/-to the accused and that he had not demanded the said amount from him. he further stated that as per the recorded conversation he had requested the accused to meet him in the evening and the accused had declined and stated that he was at betalbatim. he further admitted that during the later part of the same evening he had called upon the accused to meet him in the old market and no demand was made by him during the said conversation. he further stated that the three recordings on phone between the accused and himself were done on 4.10.02 at different times and the fourth one was done on 5.10.02. he further admitted that as per the recorded conversation on 5.10.02 he had suggested to the accused that they would meet on tuesday and when he would carry the money but there was no meeting between the accused and himself on tuesday and earlier on 4.10.02. in further cross examination he stated that he did not recall whether there was any telephonic conversation between the accused and himself between 5th to 8th of october, 2002 and further admitted that there was no recorded telephonic conversation during the said period. he further admitted that he had contacted the accused on his mobile on 8.10.02 to meet in connection with the said file and the accused was not in the panchayat office when he had called him and that he had told the accused to meet him on the said date i.e. 8th to have talks in connection with the said file. he further admitted that steps to trap the accused were all set on 8.10.02 and the accused had come with his vehicle and he with his own vehicle at the said spot, and, the trap party had parked their vehicle at a distance of 20 metres from his vehicle and the accused had not carried anything with him when he came to meet him. he further stated that they had discussion for sometime when he sat in his vehicle. he spoke to him about the file which he had not carried with him at that time and the accused then asked for money which he handed over to him. he denied the suggestion that the accused had refused to accept the money and gave it back to him and walked out of the vehicle. he repeated that he had taken the cash out of his pocket and handed it over to the accused. in further cross examination he stated that he could not recall if the glasses of his vehicle were tinted and besides two of them there was none present when the transaction took place. he further stated that he also did not recall if the glasses of the windows were drawn up. he denied the suggestion that he had dropped the money in the car. he further denied the suggestion that the accused gave the money back to him knowing that he was trying to trap him. he further stated that he did not know where was the trap party, when the transaction of handing over the money to the accused took place in his vehicle. he admitted the suggestion that the accused was placed under arrest out of the car and further explained that the trap party had called him out of his car and thereafter placed him under arrest. he further stated that the finger print expert lifted the currency notes from his vehicle. he admitted that the accused had not counted the currency notes which were offered by him in his vehicle. in further cross examination he stated that he did not recall if the panchas were present during the procedure apart from the trap party. he admitted that the accused was out of the car when the currency notes were picked up by the finger print expert. he admitted that the possibility that the infrastructure tax might have been rs. 46,020/-and further admitted that these taxes were assessed much after the application for occupancy certificate. he denied the suggestion that he was trying to strike a deal with the accused for an amount of rs. 15,000/-by offering rs. 10,000/-to him and keeping rs. 5,000/-for himself to escape the tax liability. he denied the suggestion that he had falsely stated that the accused demanded the money and accepted the money from him. likewise he denied the suggestion that the accused had not pointed out the money in the vehicle. he admitted that the recording of the phone calls between the accused and himself were at his instance. he further stated hat he did not recall if no demand was made by him during any of those three conversations.15. pw2/ramnath pai stated that he acted as panch witness on 8.10.02 and was deputed by the chief town planner to go to the office of the crime branch and the second panch witness shri sadashiv tilve was also working in the same department and both were deputed for the same purpose and they reached the crime branch at about 13.10 hours on 8.10.02 and they were told by pi mamledar/pw11 that atul naik working as secretary of the village panchayat of dicarpale had demanded a sum of rs. 15,000/-from suraj d'souza for giving occupancy certificate and after negotiating it was reduced to rs. 10,000/- and the said suraj d'souza had produced two micro cassettes of sony make before them but he did not recall what were the details recorded on the said micro cassettes but he was in a position to identify them, and, thereafter the said police inspector mamledar had arrived with the cassette player, played the said micros cassettes in their presence and heard conversation between two male persons whose voices were identified as those of pw1/suraj d'souza and the accused, as told to them by p.i. mamledar. he stated that the recording of the conversation was reproduced in the panchanama and pw1/suraj d'souza had told them that these conversations took place partly on 4.10.02 and 5.10.02 but he was unable to recall the details of the said conversations and after the said two micro cassettes were played in their presence they were packed in two separate envelopes, sealed in their presence and signed by each of them which he identified before the court and thereafter they came to hotel imperial at aquem, margao and the said suraj d'souza came separately and then all of them went to the conference hall where the scientific officer was introduced to them and he showed to him the demonstration with some powder and currency notes and the said suraj d'souza had brought about twenty notes in the denomination of rs. 500/-each and a record of serial numbers of the said notes was made in the panchanama and the said scientific officer applied powder carried by him to the said notes and which were handed over to the said suraj d'souza who in turn had to handover them to the accused and that then p.i. mamledar directed suraj d'souza to keep his other belongings from his shirt pocket in his pant pocket and the left side pocket of his shirt was kept empty and the notes were then sprinkled with powder and were placed in the left pocket of the shirt of the said suraj d'souza and then p.i. mamledar told suraj d'souza that he must travel to the old market alone in his own vehicle and arrange a meeting with atul naik in the old market at 17.30 hours ad thereafter to handover the said money to him, on his demand. the said suraj d'souza had phoned the accused in their presence and spoke to him on his mobile phone and then p.i. mamledar had also told the said suraj d'souza that no sooner he handed over the money to the accused on his demand, he must blink the headlights of his vehicle and the said suraj d'souza was using a santro car on the said day but he did not recall its registration number and after the said formalities were complied with, panchanama was drawn and as per the instructions, the said suraj left before them at about 17.10 hours. thereafter they came to the old market and stopped at a distance of about 15-20 metres from the place where suraj d'souza had stopped his vehicle, as per instructions of pi mamledar and the accused came to the spot as suggested by suraj d'souza at about 17.30 hours and when suraj d'souza showed the light signal, all of them rushed to the car of suraj d'souza and noticed that cash had fallen near the seat where he was sitting i.e. at his feet. he stated that when the light signal was given by suraj d'souza, the police rushed to his vehicle and it is he who had collected the said notes with his hands and his hands were not washed with the said solution nor his finger prints check by the scientific officer. he stated that he did not know how the notes landed on the floor of the car. he stated that p.i. mamledar had taken personal search of the accused and recovered some articles, the details of which he could not recall but there were about twelve items and prior to that a search of suraj d'souza was also taken, and thereafter they had been to the house of the accused behind the civil court building at margao but nothing incriminating was found.16. shri bras de sa, learned counsel appearing on behalf of the accused, referring to certain stray statements made by pw1 suraj d'souza in his cross examination, has submitted that the prosecution has produced no evidence of demand having been made by the accused and in absence of such evidence no conviction was possible. learned counsel has referred to the statements such as there is no specific statement by the accused recorded on 4.10.02 demanding rs. 10,000/ for himself. another statement referred to is i admit that from the latter part of the same evening when he called upon the accused to meet him in old market, no demand was made by him during such conversation. i admit that as per second conversation i had offered rs. 5,000/-and that he had not demanded the said amount from me. learned counsel has then placed reliance on the case of sita ram v. state of rajasthan : air 1975 sc 1432 wherein the apex court observed that in the background of the high court's findings that it had not been proved that the appellant had demanded any bribe from mohan lal, they did not consider it safe to sustain its finding on the point of payment of the bribe by the complainant to the appellant on the testimony of pw9 alone when the evidence of pw2 is not admissible on the point. the result is that not only the story of demand of bribe by the appellant from the complainant was not proved, but even the story of payment of the money by the complainant was not established beyond reasonable doubt. that being so, the rule of presumption engrafted in section 4(1) cannot be made use of for convicting the appellant. reliance is also placed on v. venkata subbarao v. state (2006) 13 scc 305 wherein the apex court observed that in the absence of proof of demand, the question of raising a presumption would not arise. in my opinion, the submission made, is out of context of the facts of this case. the evidence of pw1/suraj has got to be read as a whole. the said pw1/suraj had clearly stated that, the accused was demanding rs. 15,000/-as bribe for issuing the occupancy certificate and thereafter the accused had reduced it to rs. 10,000/-. pw1/suraj had also stated that after the accused came and sat in his car, he asked the accused for the file whereupon the accused demanded cash of rs. 10,000/-and he handed over rs. 10,000/-to the accused. is this not a story of demand by the accused? if one goes by the conversation between the complainant and the accused, it is quite clear that initially the accused had demanded rs. 15,000/-and then settled for rs. 10,000/-and although the complainant had tried to reduce it further, it did not work out and when again the complainant asked the accused as to with how much he should come, the accused told him whether he was not told about it, and, as far as this conversation is concerned there is no dispute raised about it on behalf of the accused. even otherwise, there can be no legal principle to support a proposition that in case there is no demand from the public servant, there can be no conviction. does it mean that if a certain amount is offered to a public servant to get a particular work done and the public servant pockets that amount, there is no offence committed? sections 7 as well as section 13 uses the expression such as accepts, obtains, agrees to accept or attempts to obtain any gratification other than legal remuneration. before any one is proceeded under the said sections all that is necessary to prove is that acceptance was a result of demand that the money passed on. passing of money is a consequence of the demand. cases cannot be eliminated where the initiative to pass the money is taken by a person and the accused pockets the same without raising any objection. a similar submission appears to have been made in dattatraya krishnaji joshi v. state of maharashtra : 1991 cr. l. j. 2097 and this court held that it did not appear to be correct submission upon the facts as they stood as the complainant had deposed that at the meeting on 20.8.80 that since the accused had demanded and he agreed to pay rs. 1,000/-and had agreed to pay rs. 500/-towards that amount on tuesday, 2.9.1980, on his going to the office of the accused, the latter had specifically inquired from him as to what had happened to his work whereupon he had replied to the accused and assured him that as agreed on the previous thursday he had arrived there with all the arrangements, and this court held that the demand was not required to be proved to be made in such a plain or crude or tersely clear words. the conversation between the parties had taken place in marathi which is a language so sophisticated and so pithy in meaning that the words used in the language for the conveying of the demand for rs. 500/-was more than amply so conveyed by the words which the accused is proved to have actually uttered when the contractor accompanied by chole entered his office and when the two of them were duly seated in the chairs by the side of the accused. this court observed that when the counsel was asked whether there were any precedents in support of the contention advanced that the demand is to be proved to have been made in absolutely clear and specific words, and, concluded that there is no such precedent and what has to be appreciated is that the making of a demand has to be a matter of understanding not between the accused and the third person but by the person who demands and the person who proceeds to pay or who is to pay. today nobody asks or demands for money directly. things are made difficult, to do the work, to send a message that unless money is paid the work will not be done and then the public is expected to pay the amount, depending upon the nature of work, and get the work done. these are sad things which are happening and are known to every body, with the level of corruption in our public services.17. learned counsel further submits that the complainant had with him, as stated by p.i. mamledar/pw11, a voice activated recorder which was not produced before the court and which is suppressed and in case it was produced, it would support the version of the accused that he did not at all accept the money handed over to him by the complainant suraj d'souza. he further submits that in case both the hands of the accused got tainted with phenolphthalein, it was in the process of refusing to accept the money. shri ferreira, learned public prosecutor submits, that the said complainant did have a voice recorder but it was not activated and nothing was recorded on it and it is quite possible that the complainant, being under some tension, forgot to activate it and since nothing was recorded on it in the course of what transpired in the car, the same was not produced.18. the panchanama and the evidence of p.i. mamledar/pw11 does show that there was a voice recorder with the said complainant pw1/suraj. as far as this recorder is concerned, the complainant was not at all cross examined even to find out whether he had activated the same or recorded anything thereon. in case he had activated the recorder and recorded any conversation between him and the accused, the complainant would have certainly produced it as he did produce the recordings carried out by him earlier. it is more than probable that the complainant, in a role which he was required to play, which would not have been free from some tension, forgot to activate the said recorder and because nothing was recorded that the recorder was not produced. considering the facts, no adverse inference could be drawn against the prosecution for non production of the said recorder. in any event it may be observed that in case there was something on the recorder which would favour the accused, nothing had prevented the accused, to direct the prosecution to produce the said recorder and find out from the micro cassettes whether anything was at all recorded. the fact that the complainant was not cross examined on that aspect shows that this submission is belatedly made and in the absence of any foundation in cross examination, the same cannot be accepted. as regards the hand wash of the hands of the accused turning pink and tested positive for phenolphthalein, the explanation now sought to be advanced on behalf of the accused cannot be accepted because that was not the explanation given by the accused in his 313 statement. the stand taken by the accused in his additional statement produced alongwith his 313 statement was that he opened the front door of the car and shook hands with the accused who told him to sit, but he refused and left the vehicle. shaking of hands by now has become too common a defence to explain the hand wash which is generally taken becoming positive for phenolphthalein powder. the accused wishes the court to believe that he went all the way to the old market to meet the complainant, shake hands with him and then return. the presence of phenolphthalein powder on both the hands of the accused which is proved from the hand wash collected from him and as stated by the police officers, clearly shows that the accused accepted the said notes handed over to him by the complainant and it is more than probable that the accused took them in his right hand and transferred to his left with a view to pocket them but had to throw them because of the arrival of the police. the very fact that the hands of the accused were tainted with phenolphthalein powder and the notes were found near his feet near the seat where he was sitting is more than sufficient to conclude that he was in possession of the said notes. the very purpose of using phenolphthalein powder is to obtain proof of acceptance by a scientific method. the apex court in raghbir singh v. state of pubjab : 1976 cr. l. j. 172 observed that where a trap is laid on a public servant, it is desirable that the marked currency notes which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence with is sometimes of dubious character for the purpose of deciding the fate of the public servant. again, the apex court in khilli ram v. state of rajasthan : (1985) 1 scc 28 has stated that the practice of using phenolphthalein powder for treatment of currency notes is invoked for well over three decades and it is used with a view to prove the passing of a bribe. the apex court in a similar situation like ours in hazari lal v. state : (1980) 2 scc 390 held that it is not necessary that the passing of money should be proved by the direct evidence and it may also be proved by circumstantial evidence. in that case the notes were thrown out by the accused but were found to be the same notes which were earlier treated with phenolphthalein and handed over to pw3 before the raid and the court held that the events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from pw3. the court further observed that the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from pw3, who a few minutes earlier was shown to have been in possession of the notes and once the finding that the accused had obtained money from pw3 was arrived at, the presumption under section 4(1) of the prevention of corruption act was immediately attracted. the case at hand, is on a sounder footing, in that the accused was found with tainted hands and was seen throwing down the money and the same was found besides him and therefore there was no other option but to raise by legal compulsion the presumption that the gratification was paid to or accepted by the accused as the motive or reward to issue the occupancy certificate which was also in the possession of the accused. the premise to be established on facts for drawing a presumption is that there was payment of acceptance of gratification and once that premise is established, the inference to be drawn is that the gratification was accepted as the motive or reward for doing or attempting to do any official act. the accused failed to explain how his hands were tainted with phenolphthalein and the amount of rs. 10,000/-was found besides him. the explanation given by him that he only shook hands and then went away cannot be accepted. the money might have not been physically found on the person of the accused but it was found besides him where he was sitting and he was found with his hands tainted and seen throwing down the money accepted by him. in other words, the accused was found in possession of the money paid to him by pw1/suraj and as such there was no other option but to raise the presumption in favour of the prosecution and against the accused. the accused has failed to discharge the said presumption.19. learned counsel next submits that there was no supplementary statement of the complainant recorded after the raid was conducted. learned counsel has not been able to point out any requirement of law in that regard or the practice generally followed in recording such statements and the learned public prosecutor submits that there is no such practice except for drawing the panchanama of the raid conducted.20. learned counsel next submits that the accused who had ceased to be the secretary of the village panchayat could not have granted the said certificate. this submission cannot be accepted at all. the certificate was ready and in his possession and the circumstances show that he was only waiting for vitamin m (as the expression is commonly used nowadays) to issue the same to the said complainant. in case the occupancy certificate could not be granted, as stated by him, because light, water and house tax was not paid, then the question is why was it resolved to be given by the panchayat and was got prepared by the accused? the occupancy certificate is given only when the building is completed as per rules. the rest of the things would come later. the infrastructure tax was also paid by the complainant and therefore the submission that the occupancy certificate could not be given cannot be accepted. it was ready in his hands. he had continued to be the secretary of the village panchayat. he had not handed over the charge, and, the documents of the village panchayat were also otherwise found in his possession. even otherwise it is the accused who was required to prepare the estimates of light, water and house tax and could have done the same.21. learned counsel further submits that there is discrepancy as to who picked up the notes. it may be so and this discrepancy is hardly of any consequence. it would hardly matter whether pw2/ramnath pai picked them up or any other witness.22. learned counsel further submits that there is one more doubt as to who reported first to p.i. mamledar whether it is pw1/suraj or pw3 pio but that again cannot make much difference for the fact remains that both pw1/suraj d'souza and pw3/pio pereira were acting in tandem and it is quite probable that pw3/pio pereira had first reported to p.i. mamledar about the demand made by the accused, as stated by him.23. learned counsel further submits that there is no explanation as to why the complaint was not immediately lodged either on 6th or 7th . one of the explanation given is that p.i. mamledar had directed to record the conversation first which was accordingly done on 4th and 5th . no explanation was given as to why immediately the complaint could not be lodged on 6th or 7th but that in my view is not at all fatal to the case of the prosecution in the light of other overwhelming evidence produced by the prosecution where the raid was conducted and the accused was caught in the said raid accepting the money demanded by him from pw1/suraj d'souza. delay by itself cannot be a ground to doubt the prosecution case. it only puts the court on guard to appreciate the evidence more carefully. delay cannot defeat a case which is otherwise proved beyond reasonable doubt.24. learned counsel further submits that there are over writings and interpolations in the complaint. the only over writing is as regards the date which is written as 8th . it is confirmed by writing the same date below the signature of the complainant in the complaint. there is no interpolation at all as is generally understood except that the figure of rs. 10,000/-had to be added above the line but that would not make the case of pw1 suraj d'souza less convincing because the conversation earlier recorded is to the same effect. it is also in the same ink and appears to have been written at the same time, the complaint was written.25. then there is evidence of pw11/p.i. mamledar who stated that after the signal was given, he rushed to the spot and two head constables caught hold of both the hands of the accused and he asked the accused to produce the amount handed over to him by pw1/suraj and the accused pointed inside the car and he told pw2 to collect the cash which was scattered on the floor of the car. in state of kerala v. m. m. mathew : air 1978 sc 1571, the supreme court held that the evidence of the investigating officer cannot be discarded merely on the ground that he was interested in success of the investigation. the evidence of the investigating officer cannot be branded as highly interested on the ground that they want that the accused are convicted. such a presumption runs counter to the well recognised principle that prima facie public servants much be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. in hazari lal (supra) though the complainant and the panch witness did not support the case of prosecution, yet, by relying upon the evidence of police officer, the apex court convicted the accused.26. in my opinion, therefore, the learned special judge could not be faulted in convicting the accused. the prosecution had proved its case beyond reasonable doubt against the accused. the evidence of the prosecution coupled with the presumption, in the absence of any proof to the contrary or even a plausible explanation, had to be considered tent amounting to proof of the fact that the accused had demanded and was paid rs. 10,000/-to obtain the occupancy certificate. the explanation offered by the accused does not carry conviction and is improbable.27. i find there is no merit in this appeal and accordingly the same is hereby dismissed. accused to surrender on or before 22nd october, 2009 to undergo the sentence.