2006 ALL MR (Cri) 1323
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.C. CHAVAN, J.
Ananda S/O. Sukhdeo Gangane Vs. State Of Maharashtra
Criminal Appeal No. 114 of 1997
16th January, 2006
Petitioner Counsel: Shri. A. V. BHIDE
Respondent Counsel: Shri. Y. B. MANDPE
(A) Prevention of Corruption Act (1947), S.5(1)(d) r/w. S.5(2) - Change of corruption - Receipt of money - Proof - There can be hundred different ways for establishing that the accused had received money - The question is whether the evidence tendered is adequate to show that the money was received or not - Non-seizure of the piece of cloth or its non-examination does not rule out reliability of the evidence about tainted fingers of the accused. (Para 21)
(B) Prevention of Corruption Act (1947), S.5(1)(d) r/w. S.5(2) - Conviction under - Challenge to - Conviction of accused under S.5(1)(d) r/w S.5(2) challenged on ground that investigation was carried out by the raiding officer - Held, it cannot be held that conviction was vitiated because the investigation was carried out by the raiding officer unless it is shown that such investigation would cause prejudice to the accused. 1971 Cri.L.J. 1615 - Referred to. (Para 25)
Virendra Pratap Singh Vs. State of U. P., 1991 Cri.L.J. 2964 [Para 11]
R. S. Nayak Vs. A. R. Antulay, AIR 1984 SC 684 [Para 11]
Ambalal Motibhai Patel Vs. State of Gujarat, 1961(1) Cri.L.J. 15 [Para 12]
Suryabhan Vs. State of Maharashtra, 1995 Cri.L.J. 107 [Para 16]
Shantilal Vs. State of Rajasthan, AIR 1976 SC 739 [Para 24]
H. D. Sharma Vs. State, 1971 Cri.L.J. 1615 [Para 25]
JUDGMENT :- The appellant, who has been convicted by the learned Special Judge, Khamgaon for the offence punishable under Sections 161, 165 of the Penal Code, 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer rigorous imprisonment for one year and fine of Rs.100/- on each count, has preferred this appeal.
The appellant is Talathi who was incharge of village Sangwa. One Shivshankar Ingale had approached the appellant on 01-01-1987 for effecting mutation in his name in the record of rights in respect of field Gat No.48 of village Sangwa on the basis of a Gift Deed. The appellant demanded a sum of Rs.250/- to effect such mutation. The complainant Shivshankar paid a sum of Rs.100/- on 01-01-1987 but the appellant stated that he would not effect the mutation unless balance of Rs.150/- was paid to him.
3. On 20th January, 1987 the appellant called complainant's brother Rameshwar and obtained his thumb impression on a register in his house at Shegaon. The appellant told Rameshwar, brother of the complainant, that on payment of balance of Rs.150/- their work would be done. On 27-01-1987 the complainant again approached the appellant and showed him a cheque of Rs.350.40 ps., received by the complainant, presumably to assure the appellant that the appellant would be paid. The appellant allegedly retained the cheque stating that he would return it after receiving the balance. The cheque had been returned to the complainant on 28-01-1987. The complainant then approached Anti Corruption Bureau and lodged complaint. Trap was arranged but could not succeed on 29-01-1987. Again on 30th January, 1987 the complainant approached the appellant when the appellant obtained complainant's signature on a register and told the complainant to come back with balance of Rs.150/- on 31-01-1987.
4. On 03-02-1987 the complainant lodged another complaint with the Anti Corruption Bureau and a second trap was arranged. Accordingly on 03-02-1987 after pre-trap formalities the Raiding Patty reached Shegaon. The complainant and a panch went to the house of the appellant and learnt that he had gone out. They waited for him till evening and again approached him at his house and found him at his residence. The complainant was taken by the accused to nearby Pramod Kirana Shop. The appellant/accused told one Awadhut Shegokar, the shop keeper, to receive the amount from the complainant and credit it to his account. Accordingly Awadhut received a sum of Rs.170/- from the complainant. A pre-determined signal was given by the complainant. The raiding party swooped and tainted currency notes were seized, necessary panchanama were drawn up. The documents which the accused had brought for being delivered to the complainant were also seized. Necessary revenue record was seized from the residence of the accused. A detailed panchanama was drawn up.
5. In course of investigation the police caused statements of witnesses to be recorded, got sketch of the spot drawn up, sent necessary proposal to the Sub-Divisional Officer, Khamgaon for according sanction for prosecution of the appellant and after receipt of sanction sent charge-sheet to the Special Judge, Buldhana from where it came to be assigned to Special Judge, Khamgaon, within whose jurisdiction the offence had taken place.
6. The appellant and the other accused Awadhut were charged by the learned Special Judge of the offence punishable under Sections 161 and 165 of the Penal Code, 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947. They pleaded not guilty and hence, were put on trial. In its attempt to bring home the guilt of the accused prosecution examined in all six witnesses. The appellant examined himself in his defence and denied that he had ever demanded any gratification from the complainant, as also receipt of any such gratification by Awadhut. He stated that he has been falsely involved in the offence. On behalf of the original accused No.2 Awadhut on Irbhan Shegokar was examined as defence witness. Irbhan claimed to be the owner of the shop and he too stated that though Awadhut had not received any amount, the person concerned was trying to give money and threw the currency notes near the wooden box. Upon consideration of the prosecution evidence in the light of defence raised, the trial Judge acquitted accused Awadhut, but convicted the appellant for the offence punishable under Sections 161, 165 of the Penal Code and 5(1)(d) read with 5(2) of the Prevention of Corruption Act and sentenced him as aforementioned. Aggrieved thereby the appellant has preferred this appeal.
8. I have also gone through the grounds raised in the Memo of Appeal. The learned counsel for the appellant has urged that the sanction to prosecute granted by the S.D.O., who was examined as P.W.3 was mechanical and was granted when he had no jurisdiction to do so. He therefore, submitted that since there was no valid sanction for prosecution of the appellant the trial itself was vitiated. The learned A.P.P. rightly pointed out that a trial does not get vitiated and cannot result in acquittal of the appellant even if the sanction is held to be deficient. Section 6 of the Prevention of Corruption Act lays down that no Court shall take cognizance of offence punishable under Sections 161, 164 and 165 of the Penal Code or Section 5 of the Prevention of Corruption Act except with previous sanction of the Authority competent to remove such public servant from the office. The learned A.P.P. pointed out that if sanction is found to be deficient in any manner such defect can be cured by remitting the case back to the trial Court for reconsidering the matter after defect in sanction was removed.
9. In any case, after perusal of evidence of P.W.3 Raut it does not appear that the sanction was granted by him mechanically or that the sanction suffers in any manner from any deficiency like non-application of mind etc. Merely because a draft sanction order as sent to the Sanctioning Authority or was considered by such authority it does not follow that the sanctioning authority can be said to have merely signed on the dotted line, particularly when P.W.3 S.D.O. Raut states that he had gone through the papers of investigation and satisfied himself that the appellant had demanded and accepted bribe. In view of this sanction at Exh.40 issued by Shri. Raut cannot be faulted.
10. The learned counsel for the appellant next submitted that Shri. Raut lacked the authority to grant such sanction since at the relevant time the appellant was not at all serving under Shri. Raut. A transfer order at Exh.43 was shown to Shri. Raut, which shows that on 30th May, 1988 the appellant was transferred to Jalgaon Jamod Sub-Division, whereas Shri. Raut was at Khamgaon Sub-Division. The sanction itself was issued by Shri. Raut on 01-11-1988. The learned counsel for the appellant therefore, submitted that since the appellant was not removable by the orders of Shri. Raut at the time when the sanction was given, the sanction was bad, in as much as it was not given by the authority competent to remove the appellant.
11. The learned A.P.P. countered by pointing out that Sub-Section (2) of Section 6 of the Prevention of Corruption Act 1947 categorically lays down that the sanction has to be given by the authority competent to remove such public servant from his office at the time when the offence was committed. He therefore, submitted that subsequent transfer of the appellant from Khamgaon Sub-Division to Jalgaon Jamod Sub-Division is inconsequential. The learned counsel for the appellant has relied on the decision of Allahabad High Court in Virendra Pratap Singh Vs. State of U. P., reported at 1991 Cri.L.J. 2964 which pertains to sanction for prosecution of a Naib Tahsildar. In that case the sanction was accorded by the Governor when it ought to have been accorded by the Board under the relevant Service Rules. The sanction by Governor was sought to be justified on the ground that at the time of sanctioning prosecution the accused was working as Deputy Collector. Relying on the decision of the Supreme Court in R. S. Nayak Vs. A. R. Antulay, reported at AIR 1984 SC 684 the Court held that sanction can be given only by the authority competent to remove the public servant from the office which he has misused, namely that of Naib Tahsildar and not that of Deputy Collector. This judgment infact takes the wind of the contention that the Sub-Divisional Officer, Jalgaon Jamod and not Sub-Divisional Officer, Khamgaon should have issued sanction. Therefore, the challenge to the conviction of the appellant on the ground of defects in the sanction have to be rejected.
12. The learned counsel for the appellant next submitted that the test about tainted notes, which have been examined under ultra violet light, is not held to be appropriate and therefore, the entire story of demand or acceptance of bribe should have been rejected by the learned Special Judge. The learned counsel for the appellant relied on the decision of Gujarat High Court in Ambalal Motibhai Patel Vs. State of Gujarat, reported at 1961(1) Cri.L.J. 15, where the Court had considered the question whether the use of anthracene powder and ultra violet light provide fool proof test of acceptance of tainted notes, in the context that even ordinary tap water has generally a faint bluish fluorescence, due, in all probability to small traces of dissolved organic matter. Therefore, fluorescence test was not fool proof. Even so, it may be seen that the Court had held that the conviction of the appellant in that case where such test was applied was not liable to be set aside. Therefore, the decision is not an authority for proposition that the test applied by the Raiding Party did not show that the appellant had accepted the bribe amount. As doubts about tests which are employed come to be expressed and examined in judicial proceedings, the tests go on getting refined. Therefore, merely because now a better test of use of phenolphthalein powder is available, it does not follow that the test employed by the raiding party at the relevant time would vitiate conviction itself. Therefore, this objection has to be rejected.
13. The entire story about demand or acceptance of bribe by the appellant is, according to the learned counsel for appellant, contrived and unworthy of belief. He pointed out that if the appellant has indeed demanded money the failure of first trap is inexplicable. He submitted that had the appellant so desired, he could have taken money in the first attempt itself from the complainant. He further pointed out that the mutation is not sanctioned by the Talathi. It has to be approved by the Higher Authorities and therefore, there is no question of any demand of money by the appellant to sanction mutation. According to the learned counsel, the complainant had admitted having received copies of all the documents. Therefore, there was no question of appellant being in a position to demand bribe or the complainant paying any such bribe to the appellant.
14. The complainant P.W.1 Shivshankar had sought mutation of a field in his name. He stated that the appellant had demanded a sum of Rs.250/- for doing his work. It is true that the accused was not authority to order mutation. Precisely therefore, when on 29-01-1987 the complainant had visited the accused, the accused told him that since the officer has not signed the document it was not ready, and therefore, he could not deliver the document. However, merely because the appellant was not authority to sanction mutation, it does not follow that he could not have demanded the bribe for doing this favour.
15. The learned counsel for the appellant next submitted that infact, the mutation has already been sanctioned on 29-01-1987 itself and the accused had handed over all the copies to the complainant on 29-01-1987 itself. The appellant had stated so in his evidence as defence witness at Exh.74. The complainant stated that he had been asked by the accused to come to his house to collect documents on 29-01-1987 and accordingly, as a part of the trap, he had been to the house of accused with one Joshi. On that day the appellant returned the cheque of Rs.350.40 ps., which appellant had retained, and stated that since the document was not ready he should come again. Hence, the trap had failed on that day. The complainant had denied that he had received all the documents on 29-01-1987. He, however, stated that he made signature on the register when he visited the accused on 30th January, 1987. The learned counsel for the appellant submitted that if the accused wanted the complainant to pay money he would not have returned the cheque. This contention does not stand to scrutiny because, unless the exact talk which preceded return of the cheque is brought on record, it may not be possible to consider the cause or effect of return of cheque. It is perfectly possible that the cheque was returned in order to enable the complainant to raise requisite amount for being paid to the appellant. Therefore, the return of cheque would, on the other hand, strengthen the possibility of there being a demand of bribe as a pre-condition for delivery of documents.
16. The learned counsel for the appellant drew my attention to the decision of this Court in Suryabhan Vs. State of Maharashtra, reported at 1995 Cri.L.J. 107, where the Court held that when it was established that the mutation had already been effected, to the knowledge of the complainant, there was no question of proof of any demand of bribe for such purpose. In the instant case the mutation, even according to the appellant, was approved by the competent authority only on 29-01-1987, and there is nothing to show that the complainant was made aware of the mutation having been approved before the trap. In any case, it is not just the question of effecting mutation, but also of delivering necessary copies to the complainant to show that the mutation had been so effected. Hence, ratio of Suryabhan's Case would not apply.
17. As regards delivery of documents claimed to have been effected on 29th January, 1987, in the face of complainant's refusal, to have received such documents, mere signature of the complainant would not help the accused in establishing that such delivery was already effected. It is pertinent to note that the complainant has denied having signed on 29-01-1987. If the documents had been delivered on 29-01-1987 itself, the learned Additional Public Prosecutor rightly wondered as to how the documents were found to be in possession of the appellant at the time of raid as evidenced by panchanama at Exh.36. The documents, if already delivered, should have been in possession of the complainant, rather than the accused. The learned A.P.P. pointed out that the evidence of complainant Shivshankar, panch Bhimrao who is examined as P.W.2, and raiding officer P.W.6 Zamre adequately establishes the events as they occurred on the incidental evening and show that the documents in question were infact with the appellant himself at the time of raid. The learned A.P.P. submitted that presence of accused at the time of raid alongwith documents clearly establishes the quid-pro-quo that the complainant was to pay bribe money and the accused was to deliver the documents.
18. The learned counsel for the appellant submitted that if the balance of bribe to be paid was Rs.150/-, it is not clear as to when the amount rose to Rs.170/-, and why the sum of Rs.170/- was paid by the complainant to accused No.2. The complaint at Exh.21 shows that while initially the appellant had made a demand of Rs.150/- on 30-01-1987 the demand was revised to Rs.170/-. The reasons for doing so are not on record. The calculations that the accused may have in mind might have led to making of such demand. The learned A.P.P. submitted that this question need not be left to speculation and has been squarely answered by the appellant himself in his deposition at Exh.74. The appellant had categorically deposed that he had told the complainant that if complainant did not pay the sum of Rs.170/- accused would allow encumbrances to remain as they were and the complainant would not be able to raise loan. Appellant had also explained that he was to get Rs.19/- towards charges for preparing copies. Either ways, it could be said that Rs.150/- was towards bribe and Rs.19/- was towards copying charges and so a global sum of Rs.170/- was sought. The appellant had himself stated that he had told the complainant that complainant's grant father had taken Tagai loan of Rs.100/- on which interest of Rs.79.75 had accumulated. If this was so, the appellant should have told the complainant to pay a sum of Rs.180/- rather than Rs.170/- to clear the encumbrance on the property. The claim of Rs.170/- is consistent only with the claim of bribe of Rs.150/- and copying charges of Rs.19/-. The learned A.P.P. rightly pointed out that the admission by the appellant that he had asked the complainant to pay such a sum rules out the need for any further scrutiny of evidence about the demand made by the appellant.
19. The appellant had stated in his deposition that he had even paid fees of the complainant on two occasions. If the relations of the appellant with the complainant were so good and the complainant was so needy that he had been helped by the appellant twice in the past, it would be for the appellant to explain as to why the complainant turned ungrateful and lodged false report against him. If the story of complainant having been helped by the accused is accepted, then accusations of the complainant against the appellant would rather show that there must have been a very strong ground for making such accusation. Since the accused does not state as to why the complainant was motivated to file false complaint against him, inspite of the fact that he had helped the complainant at past, it can be inferred that the complainant made a complaint because he was indeed being fleeced by the accused.
20. The learned counsel for the appellant next submitted that accused No.2 Awadhut had infact, not accepted any amount on behalf of the appellant and that the amount had infact been thrown. He pointed out that there were some contradictions in the evidence of P.W.1 Shivshankar and P.W.2 Bhimrao panch in respect of the manner in which the bribe was given. P.W.1 Shiv Shankar stated that after the pre-trap panchanama in the office of Anti-Corruption Bureau, they reached Shegaon. After contacting the appellant, who took them towards the shop and asked the shop owner to collect the amount from him, the complainant paid Rs.170/- to the shop owner. The shop owner/accused No.2 received the sum and kept it below the wooden drawer of his counter. The Raiding Party had then swooped. P.W.2 Bhimrao panch at the raid stated that he had accompanied the complainant to the house of the accused and the accused asked whether the complainant had brought money. The complainant gave affirmative answer and demanded document whereupon the accused told them to go to the shop and told the complainant to pay money to the shop keeper. P.W.2 Bhimrao also told that the shop keeper accepted the money and kept it below the drawer and then after receiving signal the raiding party came. The account does not at all appear discrepant.
21. The learned counsel for the appellant submitted that the cloth on which the drawer was kept has not been seized. It could have shown whether the tainted money was actually kept on that piece of cloth. The learned A.P.P. rightly submitted that there can be hundred different ways for establishing that the accused had received money. The question is whether the evidence tendered is adequate to show that the money was received or not. Non-seizure of the piece of cloth or its non-examination does not rule out reliability of the evidence about tainted fingers of Awadhut, the shop keeper, who received money.
22. The learned counsel for the appellant submitted that there is contradiction in the evidence tendered about whether the shutters of the shop were closed, and whether all the lights in the shop were put-off. After going through the evidence it appears that there is no material contradictions as such. The witnesses clearly stated that the complainant was initially out side the shop when the raiding party examined the situation inside the shop and also examined the hands of original accused No.2 and then examined the complainant. This was proper and also necessary because complainant's tainted fingers while delivering bribe should not have been allowed to touch anyone else in the shop, to attract allegation of the fingers of such person being tainted because of the touch by the complainant.
23. The learned counsel for the appellant submitted that in paragraph (9) of his cross-examination P.W.2 Bhimrao stated that when the currency notes were examined in the ultra violet light they were not emitting any light. According to him, it was serious infirmity. It may be seen that the witness, however, stated that stains of powder on the paper were visible. Therefore, if powder stains were visible it does not really matter whether the witness has seen fluorescence on the notes. In any case numbers of notes tallied. Fluorescence is helpful in tracking the receiver of bribe.
24. The learned counsel for the appellant relied on the decision of the Supreme Court in Shantilal Vs. State of Rajasthan, reported at AIR 1976 SC 739. The facts in that case were different. In that case, currency notes were seized from co-accused just as in the instant case, but the fact of complainant talking personally to the accused/appellant was not deposed by one of the two witnesses in the party. Such is not the present case. Hence both the complainant and P.W.2 Bhimrao have stated about the talk between complainant and the appellant.
25. Lastly, the learned counsel for the appellant submitted that the investigation was carried out by raiding officer P.W.6 P.I. Zamre himself. This was irregular as held by Delhi High Court in H. D. Sharma Vs. State reported at 1971 Cri.L.J. 1615. It is not clear as to why investigation could not be carried out by the officer who conducted raid. Unless it is shown that such investigation would cause prejudice to the accused, such a contention cannot be countenanced. In any case, in a trap case the evidence to be collected by an investigating officer would be the complaint received, preparation for the trap, and trap itself. There is really no investigation to be carried out in such cases. Therefore, it cannot be held that the conviction was vitiated because the investigation was carried out by the raiding officer.
26. To sum up the evidence of the appellant himself sufficiently indicates that he had indeed made a demand of Rs.170/- from the complainant. His evidence also indicates that this amount was demanded as a bribe since he could not explain as to how the figure of Rs.170/- was reached, if dues on account of Tagai was Rs.100/- + interest Rs.79.75 ps., according to his own reckoning. His presence with the documents at the shop of Awadhut also points to his insistence on illegal demand being fulfilled before the documents could be delivered. If the amount was required by him by way of Tagai the appellant could have received the amount at his own house or at the office and delivered the receipt. There was no question of his taking the complainant to the shop of Awadhut. The contention that the shop did not belong to Awadhut but infact owned by D.W. Irbhan is irrelevant. Question was which person present in the shop had received the amount on behalf of the appellant. Likewise whether there was any credit account of the appellant with the shop keeper and whether the shop keeper had credited the amount towards purchases made by the appellant is equally irrelevant.
Sentence of the appellant was suspended when the appeal was admitted. The learned Special Judge shall cause the appellant to be taken in custody to serve his sentence, if the appellant does not appear within a mouth.