Criminal Appeal No.94 of 1991

2nd August, 2004

Petitioner Counsel: Mr. YOGESH MANDPE
Respondent Counsel: Shri. V. A. DHABE

Cases Cited:
Allarakha K. Mansuri Vs. State of Gujarat, 2002 ALL MR (Cri) 1197 (S.C.)=A.I.R. 2002 S.C. 1051 [Para 9,10]
Ramanand Yadav Vs. Prabhu Nath Jha, 2004 Cri.L.J. 640 [Para 11]

JUDGMENT

JUDGMENT :- This appeal is against the order and judgment dtd.1/12/1990, passed by Special Court, Gadchiroli in Special Case No.5/1990, acquitting the respondent (original accused) of the offences punishable u/s.7 and Sec.13(d)(i), punishable u/s.13(2) of the Prevention of Corruption Act, 1988.

2. The prosecution case, in brief, is that the complainant Vishnu Kanoje (PW.1) was proprietor of 'Shivshakti Furniture Mart, Gadchiroli'. The General Hospital, Gadchiroli was in need of some wooden furnitures for which Dr. Hoshing, the then Civil Surgeon of General Hospital, Gadchiroli, issued a quotation for supply of wooden furnitures to three furniture marts, including that of the complainant. The tender of complainant was accepted and work order dtd.11-3-1986 was given to him. As per the work order, complainant supplied the furnitures to the hospital on or about 26-8-1986 and for that complainant gave undated bills vide Exhs.16/1 to 16/4 and 16/1-A to 16/4-A for Rs.4415/-. As Dr. Hoshing was transferred, the respondent took over as Civil Surgeon, General Hospital, Gadchiroli on or about 3-7-1986. In respect of the dues of complainant, bill came to be passed and Mr. Khobragade (PW.7), who was then working as cashier in General Hospital, Gadchiroli received those bills on 24-9-1986. However, respondent instructed him not to make payment under those bills without his permission. So, the complainant met respondent thrice, requesting him to sanction his bill and to make payment. On 30-9-1986 when complainant met respondent in his office and requested him to make payment of the bill amount at the earliest, the respondent demanded 10% commission and told complainant that he should pay sum of Rs.440/-. The complainant requested respondent to deduct that amount from the amount of bill and to pay balance amount to him. However, respondent declined to do so and demanded the amount in cash in advance and assured complainant that after payment of the amount of Rs.440/-, he would pass the bill. The respondent emphatically told complainant, when he met him again that the amount under bill will be paid to him only on his paying amount of Rs.440/- in advance. Hence, the complainant promised respondent that he would pay Rs.440/- to him on the next day in the hospital.

3. The complainant was, in fact, not willing to pay bribe to the respondent. Hence, he approached one Mr. Bambal (PW.10), who was then Dy. S. P., Anti-Corruption Bureau, Gadchiroli. He produced papers and then he was asked to come on the next day in the office i.e. on 8-10-1986 at 7=00 a.m. Mr. Bambal arranged for two employees, in the office of Executive Engineer, Gadchiroli to act as a panchas and to that effect reasons was given. On the same day, in the evening, one Mr. Gulhane, Junior Engineer and Mr. Lakhe (PW.2), Junior Clerk, in Tultuli Project met him and they were asked to remain present on the next day at 7=00 a.m.

4. On the next day at about 7=00 a.m. the complainant, Mr. Gulhane and Mr. Lakhe attended the office of Bambal. These two persons were introduced to other members of raiding party namely P. I. Shete, P.C. Gopichand, P.C. Haridas Mote. The complainant narrated his complaint to panchas. They were also given the written complaint (Exh.17). Thereafter, complainant produced four Notes of denomination of Rs.100/- each and two Notes of denomination of Rs.20/- each, total Rs.440/- to be given as bribe. The number of the currency Notes were noted down. After completing all formalities, including application of phenolphthalein powder on either side of the currency Notes, with the help of a brush and placing those currency notes in the right hand pocket of the pant of the complainant and giving complete instructions to the complainant, the raiding party proceeded to General Hospital . Panchanama No.1 (Exh.22) describing all these facts was prepared. The Jeep was stopped in Indira Gandhi Chowk and there complainant and panch witness Lakhe got down from the Jeep and went towards the office of respondent. Other members of the raiding party, including Mr. Gulhane took position in the vicinity. The complainant and Mr. Lakhe entered the cabin of accused. The complainant after having greeted the respondent, occupied the chair and Mr. Lakhe also occupied the adjacent chair. When complainant asked the respondent about the bill, he asked the complainant as to whether the money was brought and when complainant replied in the affirmative, the accused/respondent asked him how much amount was brought. The complainant replied that he brought Rs.440/-. Then accused enquired with complainant as to who was with him. To that complainant replied that he was his maternal cousin and he has accompanied with him for his health check-up. Respondent then asked Mr. Lakhe to go out for bringing card. Mr. Lakhe went near the door and stood there. Respondent asked complainant to come near the examination table and when they both stood near the examination table the accused demanded the amount on which complainant took out the tainted notes with his right hand from right hand pocket of his pant and offered them to the accused/respondent. The accused/respondent accepted those notes with his left hand and kept them in the front left side pocket of his pant. Thereafter, the complainant and accused returned and occupied their chairs. The accused called Mr. Khobragade and asked him to make the payment of the bill to complainant. Mr. Khobragade left cabin and the complainant followed him and gave the agreed signal from the door of the cabin on which P. I. Shete immediately entered the cabin and held the wrist of the respondent. Other members of the raiding party also rushed there. When Mr. Bambal disclosed his identity, the accused got frightened and tried to rescue himself saying as to what he did. In that, an attempt was made by him to take out those tainted notes from his pocket and drop them on the floor. Mr. Bambal warned the accused to keep quiet. Thereafter, solution of Sodium Corborate was prepared in which fingers of all the persons except complainant and accused were tested. Fresh solution of Sodium Corborate was prepared and fingers of the hands of the accused when tested, Sodium turned purple when the fingers of the left hand were dipped in the solution. Mr. Gulhane lifted the notes from the floor and compared the numbers of the notes with the numbers which were already noted. The numbers tallied. Then fresh solution of Sodium Corborate was prepared and it was sprinkled on the notes. Stains of purple colour were seen on the notes. The notes were seized under memo (Exh.24). The relevant papers and registers relating to the purchase of furnitures were obtained and seized under seizure memo (Exhs.26 and 29). Fresh solution of Sodium Corborate was prepared and sprinkled on the right hand pocked of the pant of complainant when stains of purple colour were seen on that portion. The fingers of the hands of complainant were tested in the solution of Sodium Corborate and the solution turned purple when his fingers of right hand were dipped in the solution. In fresh solution of Sodium Corborate, portion of left hand pocket of the pant of accused/respondent was dipped and it turned purple. All formalities were completed, including panchanama No.2 (Exh.27) and alongwith respondent all the members of raiding party, headed by Mr. Bambal, returned to the office of anti-corruption.

5. On the same day, in the evening Mr. Bambal forwarded report (Exh.50) to Police Station, Gadchiroli with covering letter (Exh.49), on the basis of which crime No.319/86 was registered against the accused/respondent by Police Station Officer Thakur (PW.8). Mr. Bambal recorded the statement of several witnesses. The property namely two sealed bottles, containing solution were sent to Chemical Analyser with forwarding letter (Exh.51). The Assistant Chemical Analyser, Nagpur reported, vide Exh.53 that the bottles contained phenolphthalein and Sodium Corborate. After completing investigation, the case papers were forwarded to the Director, Anti-Corruption Bureau, Bombay alongwith the Index (Exh.54) through D.C.P., Anti-Corruption Bureau, Nagpur. After completing necessary formalities, Mr. Barde (PW.4), Assistant Secretary to Government, signed the sanctioned order (Exh.35). Thereafter, the sanction order was sent to the Director, Anti-Corruption Bureau alongwith all papers. On 17-9-1988 charge-sheet was prepared and it was presented in the court of Special Judge.

6. Before the Special Court, respondent/accused pleaded not guilty to the charge and claimed to be tried. According to him, the bill was passed by him on 24-9-1986 and thereafter he had no concern with it. Once the bill was passed, the complainant had to contact the cashier and receive the payment. The complainant appears to have got enraged and entertained the grudge against the accused, as some time was taken to complete the formalities. It is contended by the accused that the payment was delayed for which the complainant held the accused responsible for no fault of his. Accused never demanded any amount from the complainant nor he accepted any amount from him. The accused is innocent and has been falsely involved. The police asked the accused to take out the amount from the said pocket on complainant's stating so to the police. On the directions of the police the accused took out those notes from the front pocket of his pant. At that time, he came to know that amount was planted in his pocket. It is also contended by the accused that the complainant might have planted the amount while the accused examined the complainant by standing, close to the examination table on which complainant was lying.

7. At the trial, the prosecution examined in all 10 witnesses including, complainant Kanoje (PW.1) who gave evidence consistent with his complaint (Exh.17), Manohar Lakhe (PW.2), who acted as panch at the time of raid and gave evidence supporting the prosecution and through his evidence panchanama (Exh.22), Seizure Memo (Exhs.24, 25 and 26) and Panchanama No.2 (Exh.27) came to be proved. Dhanaraj Likhar (PW.3), who was working as a Store Keeper in General Hospital, Gadchiroli through whom the formalities in connection with preparation of bill were completed, Mr. Khobragade (PW.7), who was working at General Hospital, Gadchiroli as Assistant Superintendent, P.S.O. Thakur (PW.8), Bandu Watbhore, who was then police constable in Anti-Corruption Bureau at Gadchiroli and Shri. Bambal (PW.10), who in fact conducted the raid. The trial court has, on appreciation of evidence, oral as well as documentary, accepted prosecution case and claim as to raid conducted by Mr. Bambal. The trial court also found that the sanctioned obtained for prosecution was proved to be valid. The factum of recovery of tainted notes from the pocket of pant of the accused is also established. However, the trial court rejected the prosecution case as to demand of amount of Rs.440/- by the accused from complainant, as also acceptance of that amount by the accused from complainant is not proved. In view of this finding, the trial court acquitted the accused. Hence, this appeal.

8. I have heard Mr. Mandpe, the learned A.P.P. for the appellant/State. He submitted that the findings recorded by the trial court, rejecting the prosecution story is perverse. That the trial court has erred in giving findings that the accused did not demand money from the complainant, in the absence of any corroboration and this finding is not proved on sound reasonings, as the trial court failed to give consideration to the criminal tendency of avoiding the presence of any witness. It is submitted that the accused asked witness Mr. Lakhe to go out from the cabine only with a view that no independent person should be there to witness the factum of acceptance of amount by him. The trial court did not take into consideration the circumstances that the accused even after passing the bills for payment, specifically directed Mr. Khobragade (PW.7) not to make payment of the bills to the complainant until consented by him. It is submitted that this contention shows the guilty intention of the accused. It is submitted vehemently that the prosecution has, on evidence established clinchingly that the amount was accepted by the respondent and this fact is borne out, as actually tainted notes were found in the pocket of the pant of the accused and the involvement of the appellant, particularly acceptance of the amount is further strengthened by the findings in the report of chemical Analyser. He, therefore, urged that the appeal be allowed and the judgment and order passed by the trial court be set aside and the respondent be convicted and sentenced accordingly.

9. As against that Mr. Dhabe, the learned counsel for the respondent supported the judgment of acquittal. He submitted that though the prosecution sought reliance on evidence of independent, witness Shri. Lakhe, in his evidence, has stated that he has not accepted that the tainted notes were accepted by the accused and put in his pocked. Therefore, ultimately, as rightly found by the trial court, there was no evidence to show that the accused accepted the amount. If that is so then the view taken by the trial court in acquitting the respondent, cannot be said to be perverse, much less unreasonable. He, therefore, urged that this court cannot interfere with the order of acquittal, passed by the trial court, when no other view is possible and the view taken by the trial court is reasonable on the basis of the evidence on record. In support of his contention, the learned counsel placed reliance on the decision of apex court in A.I.R. 2002 S.C. 1051 : [2002 ALL MR (Cri) 1197 (S.C.)], Allarakha K. Mansuri, Appellant Vs. State of Gujarat, Respondent.

10. Before embarking on submissions of learned counsels for the parties, it is necessary to bear in mind the legal position in respect of interference by the High Court in case of appeal against acquittal. The apex court in A.I.R. 2002 SC 1051 (Supra) in para 7 of the Judgment observed thus -

"In Criminal case the golden thread running through the web of administration of justice is that if two views are possible on evidence adduced in the case, one pointing to the guilt of accused and the other to his innocence, the view which is favorable to accused should be adopted. It is not a jurisdictional limitation on appellate Court.

In an appeal filed against acquittal of accused the paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence nor not. Probable view taken by the trial court, which may not be disturbed in the appeal, is as such a view, which is based upon legal and admissible evidence. Only because the accused had been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. In the instant case the trial Court relied upon certain aspects of the case for passing an order of acquittal from offence of murder. Examined critically, none of the aforesaid circumstances or aspects can be held to be based upon legal evidence."

10(A). In that matter, the apex court on critical examination of the judgment of the trial court found that the view taken by it was uncalled for, not based upon the facts of the case or the legal evidence tendered in the case and was result of conjectures, imagination and hypothesis. The High Court rightly held that the conclusions arrived at by the trial Court were factually and legally incorrect. The High Court was, therefore, justified in re-examining the whole evidence produced in the case and to hold that the accused/appellant was proved to have committed the offence of murder beyond all reasonable doubt.

11. The apex court in recent decision in 2004 Cri.L.J. 640, Ramanand Yadav (Appellant) Vs. Prabhu Nath Jha and other (Respondent) has observed that-

"There is no embargo on appellate court in reviewing the evidence upon which an order of acquittal is based. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by the acquittal. The principle to be followed by the appellate court, considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiable eliminated in the process, it is a compelling reason for interference."

12. It is, therefore, clear that in case of appeal against acquittal, interference by the High Court is permissible when there are compelling and substantial reasons for doing so and the reasons for acquittal recorded by the trial court are found to be perverse. In other words, even though two views are possible and the view taken by the trial court is found to be reasonable, so also the view of the High Court, then the view taken by the trial court is to be accepted. Interference by the High Court is legitimate only in case view taken by the trial court is unreasonable and based on no evidence.

13. I have carefully gone through the evidence on record and the judgment of the trial court. The material evidence led by the prosecution is that of complainant, witness Lakhe and Mr. Bambal. The factum of raid, recovery of the tainted currency Notes from the pocket of pant of respondent are established on the evidence on record. In addition to that, the specific defence taken by the accused if accepted in correct perspective, it is revealed that the factum of keeping the tainted notes in the pocket of the pant and further recovery of the same from his pocket is not at all disputed. Even on the point of demand of amount by the accused, in my opinion, the evidence of complainant and that of Mr. Bambal and to some extent of panch witness Lakhe lends assurance to the fact that there was demand and it is crystal clear that the complainant had been to the office of accused on that day to make payment. But then the controversy is about the acceptance of the amount. It is needless to say that the acceptance of the amount, as a fact, has to be established clinchingly by the prosecution. In that regard, bearing in mind and visualising the picture at the scene when the complainant and accused went near the examination table, the person who could witness the fact of giving amount were the complainant and witness Lakhe. As stated earlier, though the witness Lakhe supported the prosecution, his evidence does not at all show that the amount was actually accepted by the accused. He did not witness the fact of complainant's giving the tainted currency notes in the hands of accused. It is not disputed that this witness had accompanied complainant and also entered the cabine of accused and sat by his side on the chair. He did hear the conversation that was between complainant and accused. But it is borne out on the evidence of complainant that the accused, when he was told that the witness Lakhe had accompanied the accused in order to have check up, as he was suffering from stomachache, the accused asked him to go out to bring the card. Then it is a fact borne out on the evidence on record that this witness, in fact, rose from the chair where he was seated and went towards the door. However, he did not go out of cabine. It is further in the evidence that, after he went towards the door, the complainant and accused proceeded towards the examination table and, as per the prosecution case, there the tainted currency notes were given by complainant to the accused, who in turn kept them in pocket of his pant. This crucial fact of acceptance of amount is controverted by the defence. It is not disputed that except the evidence of complainant, there is no other evidence to substantiate his version that the amount was, in fact, given by him and same was accepted by the accused. It is true that putting the obtained currency notes in the pocket, is by itself is act of acceptance. But then the witness Lakhe did not witness the fact of tainted currency notes being placed in the hand of respondent and further respondent having placed the same in his pocket of the pant.

14. It is, therefore, necessary to scrutinise the evidence of witness Lakhe. In his evidence be stated that the accused asked complainant about him. The complainant Kanoje replied that he was his cousin and when the accused asked as to why he brought, the complainant replied that he (Mr. Lakhe) had stomachache. The accused then asked him whether he has brought a chit. He (Mr. Lakhe) replied in the negative and then accused asked him to bring the chit. He then stated that he stood up from the chair. The accused asked Kanoje to come to the examination room and they went inside the examination room and he (Mr. Lakhe) went near the door and stopped there. He further stated that accused and Kanoje soon returned and occupied their respective seats and the accused then rang bell when the peon named Gandhi appeared and accused asked him to call Mr. Khobragade. After Khobragade came, accused told him to make payment to Kanoje and when Kanoje started going to his room, Mr. Shete immediately stood up and went near the accused and held his hands. This evidence, if scrutinised in correct perspective, irresistibly leads to conclude that this witness Lakhe did not see actual fact of giving of amount (tainted notes) by complainant to the accused and also acceptance of the same by the accused. It has come in his evidence that from table in the cabine, where accused and complainant were seated, they proceeded towards the examination room and by that time the witness had gone towards the door of the cabine and after having at the examination table, within fraction of second, both complainant and accused returned from the examination room to the cabine. The trial court has accepted this evidence of witness Lakhe and it was on the basis that the trial court found the theory of defence of plantation of currency notes in the pocket of pant of the accused, probable and plausible. In his cross-examination this witness has admitted that Kanoje went in examination room at that time he was near the door of the cabine. He did not tell accused that he obtained the ticket. He remained standing near Gandhi, Peon, and did sit near Kanoje. He further stated that the hands of the accused were not tested immediately after his hands were held by Shete. In his cross-examination he made it clear that he did not observe with his eyes, the complainant offering the notes and the accused accepting the notes. He did not listen the talk between the complainant and the accused that might have taken place in examination room. This makes the position clear that examination room is independent of the cabine where complainant and the accused were seated initially with this witness Lakhe, sitting by the side of the complainant. It is significant to note that though this witness Lakhe gave candid admission that he did not see complainant offering the amount and the accused accepting the same, no objection was taken from prosecution side nor the permission of court was sought to put questions to this witness by the prosecutor. The reason being in the examination-in-chief of this witness, nothing specific was brought by the prosecution indicating that he himself witnessed the factum of giving the amount as well as acceptance of the same by the accused.

15. The trial court has given omissions on the admissions of witness Lakhe that he did not observe complainant offering the notes and the accused accepting the same, as also his admission that he did not listen the talk between the complainant and the accused that might have taken place in the examination room. The trial court, therefore, stated in the judgment that regarding acceptance of bribe by the accused from the complainant, there was testimony of the complainant alone. It was suggested to the complainant during cross-examination that while going towards the examination table, the complainant inserted the notes in the pocket of accused without his knowledge. The complainant denied this suggestion. Therefore, the trial court observed that when the accused and complainant were near the examination table they must have been standing very close to each other. According to the accused, he had called the complainant to the examination table for check up, as the complainant was feeling uneasy and notes might have been planted in his pocket while he was busy in examining the complainant. Even if the version of the accused about the checking of the complainant is accepted, one is certain that the accused and the complainant must have come in a close distance. The opening of the front side pocket of the pant of the accused had no chain or button. The trial court, therefore, found that the person standing close to the accused could have easily inserted the notes in such pocket without knowledge of the accused. The learned A.P.P. submitted with emphasis that this reasoning of the trial court is perverse. I do not accept this submission, as in the situation that prevailed, the possibility of currency notes being planted in the pocket of accused cannot be ruled out.

16. Much has been made by the learned A.P.P. that the accused accepted notes with his left hand and kept them in the right hand pocket of his pant, there is, however, no evidence that the accused is left handed. In such circumstances, there appears considerable force in the suggestion of the defence that the complainant might have inserted notes in the left hand front pocket of the pant of the accused. This reasoning, in my opinion, stands probable and plausible. It cannot be said to be perverse.

17. It is in the evidence that after the complainant gave signal, P. I. Shete rushed in the cabine and held arms of the accused. When the members of the raiding party came in the cabine, the accused tried to rescue himself and in that attempt took out the notes by his left hand and dropped the same on the floor. The trial court has rightly observed that the fingers of the hands of the accused were tested after accused dropped the notes on the floor and not immediately after his arms were held by P. I. Shete. Had the fingers of the left hand of accused were tested before he took out the notes and dropped them on the floor, it would have been very well inferred that it was the accused himself who had kept the notes in his pocket with his left hand. Since the test so carried out, after the accused took out the notes from his pocket and dropped them on the floor, it is but natural that the stress of the phenolphthalein powder were found on his left hand. It is quite probable that the accused might have been able to rescue only his left hand and that is why he might have put his left arm in the left hand pocket. That fact itself does not suggest that the accused was knowing that there were tainted currency notes in his left hand pocket. Therefore, with this evidence on record, the view taken by the trial court, accepting the defence theory of plantation of currency notes must be said to be reasonable and probable also. In addition to that, admitted fact that the witness Lakhe, as admitted by him in his evidence which went unchallenged, did not witness the factum of payment of the amount and the acceptance of the same by the accused, is sufficient to hold that the prosecution has failed to establish beyond reasonable doubt that the amount comprising tainted currency notes was offered by the complainant to the accused and the same was accepted by the accused and after accepting the same by his hands, he kept it in his pant pocket. If that is so, then defence version of plantation of the amount by complainant appears to be probable, at least the possibility of the amount being planted cannot be ruled out. Therefore, in such situation, evidence on record, finding of acquittal recorded by the trial court, cannot be said to be perverse or unreasonable.

18. In the result, when view taken by the trial court is reasonable and sustainable in law and facts of the case, there is no justification to interfere with the judgment of acquittal of the trial court. As such the appeal has to be dismissed. Hence, the order.

- O R D E R -

Appeal is dismissed.

The judgment and order passed by the trial court in Special Case No.5/90 dtd. 1-12-1990 is maintained and confirmed.

The bail bonds of the respondent shall stand discharged.

Mr. V. A. Dhabe, learned counsel for the respondent, who conducted the matter, as counsel appointed by this court from the legal Aid Penal, be given his fees which is quantified at Rs.2000/-.

Appeal dismissed.