2006 ALL MR (Cri) 1333
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.C. CHAVAN, J.
Deepak S/O. Rajeshwarrao Ramgirwar Vs. State Of Maharashtra
Criminal Appeal No. 221 of 1996,Criminal Appeal No. 233 of 1996
20th January, 2006
Petitioner Counsel: Shri. P. S. KHUBALKAR
Respondent Counsel: Shri. A. S. FULZELE
(A) Prevention of Corruption Act (1947), S.5(1)(d) r/w. S.5(2) - Scope and applicability of S.5(1)(d) - S.5(1)(d) clearly makes it punishable to obtain or accept for accused himself or for any other person, any valuable thing. AIR 1996 SC 490 - Referred to. (Para 10)
(B) Prevention of Corruption Act (1947), S.5(1)(d) r/w. S.5(2) - Departmental Proceedings - Corruption charges - Criminal trial is an independent proceeding, to be decided on the basis of evidence tendered at such a trial - The record of evidence in the departmental enquiry cannot replace the evidence which is taken at the criminal trial, since evidence at enquiry does not have the same sanctity. (Para 13)
Mansukhlal Vithaldas Chauhan Vs. State of Gujrat, AIR 1997 SC 3400 [Para 5]
Trilok Chand Jain Vs. State of Delhi, 1975(4) SCC 761 [Para 7]
Subhash Parbat Sonvane Vs. State of Gujarat, (2002)5 SCC 86 [Para 9]
Virendranath Vs. State of Maharashtra, AIR 1996 SC 490 [Para 10]
JUDGMENT :- The appellants who have been convicted by the leaned Special Judge, Wardha of the offence punishable under Section 161 read with Section 34 of the Penal Code and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer rigorous imprisonment for six months and fine of Rs. One Thousand on each count have challenged their conviction by preferring the present appeal.
Accused No.1 Vinayak Wamanrao Wakhare, appellant in Criminal Appeal No.236 of 1996, was serving at the relevant time as Naib Tahsildar at Samudrapur. Accused No.2 Ramgirwar, appellant in Criminal Appeal No.221 of 1996, was serving as a Clerk in the office of accused Viyanak. Complainant Ramsingh's cousin Dashrath had been arrested by the police in a chapter case. The family members had been informed that for having Dashrath released, surety was required to be furnished and for which solvency certificate was needed. The complainant therefore, approached the accused for getting solvency certificate. Accused No.1 Naib Tahsildar Vinayak demanded a sum of Rs.200/- for giving solvency certificate and ultimately settled at Rs.150/-, which the complainant promised to pay. Since there were two intervening holidays the amount was to be paid on Monday. Accused No.1 Vinayak asked the complainant to pay the amount to accused No.2, and collect the solvency certificate. Accused No.1 also told also told accused No.2 to issue solvency certificate on accepting Rs.150/-.
2-A. On 5-9-1988 the complainant approached the office of Anti Corruption Bureau, where after recording complainant a trap was arranged. The currency notes, which had been produced by the complainant for being given as bribe, were duly marked and phenolphthalein powder was applied to the currency notes. The complainant and the panch witnesses went to the officer of the appellants, and, as agreed, paid the bribe to the appellant Ramgirwar, who received money and kept it in his shirt pocket. The complainant collected solvency certificate and gave necessary signal. The Raiding Party swooped and caught accused No.2 Ramgirwar with the marked currency notes. Fingers of accused Ramgirwar were dipped in solution of Sodium Carbonate, which changed Colour. The said solution was sealed in a bottle. The Raiding Officer made necessary inquiries with both the accused and drew up panchnama of the entire proceedings. An offence was registered and on completion of investigation papers of investigation were sent to the authorities competent to sanction prosecution of the two accused. After receipt of sanction for prosecution charge-sheet was sent.
3. The leaned Special Judge charged both the accused of the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 on 22nd July, 1992 but altered the charge to one under Section 161 read with Section 34 of the Penal Code and 5(1)(d) read with 5(2) of the Prevention of Corruption Act read with Section 34 of the Penal Code, due to the fact that the offence had been committed on 05-09-1988 whereas new Act came into force on 9th September, 1988. The accused pleaded not guilty to the said charge and claimed to be tried. In its attempt to bring home the guilt of the accused the prosecution examined in all 11 witnesses. After considering the evidence rendered, in light of the defence raised, the learned Special Judge held both the accused guilty of the charges levelled and convicted and sentenced them as aforementioned. Aggrieved thereby these two appeals have been filed.
5. I have also gone through the entire record of the trial with the help of the learned counsel in order to find out whether the conviction of the appellants by the learned Special Judge was unwarranted. The learned counsel for accused No.2 Ramgirwar submitted that the sanction to prosecute Ramgirwar, given by P.W. 11 Shri. Vineshkumar Jayrath, the then Collector of Wardha was vitiated, because P.W. 3 Shri. Ajit Varti, Divisional Commissioner of Nagpur had already sanctioned prosecution of accused No.1 Vinayak on 18-03-1989. This fact was communicated by the Investigating Officer in his letter to Shri. Jayrath. Therefore, according to the learned counsel, Shri. Jayrath could not have applied his mind independently in face of the fact that his superior officer i.e. Divisional Commissioner Shri. Varti had already sanctioned the prosecution of one of the accused. The learned counsel submitted that the sanction would be vitiated if the sanctioning authority was influenced by the opinion of any other authority, and in support of this contention, he relied on a decision of the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujrat, reported in AIR 1997 SC 3400. In that case the High Court has issued Mandamus directing Secretary to the Government to accord sanction to the prosecution. In these circumstances, the sanction accorded by the Secretary was held to be influenced by the Mandamus issued by the High Court. The learned counsel submitted that, in our case also, since the superior authority's sanction was brought to the notice of Shri. Jayrath, sanction accorded by him must be held to be vitiated.
5-A. The learned A.P.P. countered, by submitting that, there is no analogy between the two cases. The Mandamus by the High Court had left Secretary with no option but to accord sanction and therefore, it was held to be vitiated. In the instant case, it was merely pointed out by way of reference that sanction to prosecute other accused had been obtained from the competent Authority. He submitted that this recital was necessary only to acquaint the Collector as to what happened to the other accused who had been involved in the trap. It was not intended to influence Shri. Jayrath. In any case, since the facts pertaining to involvements of two persons were not identical there was no question of Jayrath getting influenced by the sanction accorded by P.W. 3 Varti. In view of this, the objection to the sanction issued by P.W. 11 Jayrath does not survive. There is nothing to show that Shri. Jayrath was, in any manner, influenced by the fact that Shri. Varti had authorised prosecution of the other accused. There is nothing in the cross-examination of Jayrath to indicate that he was so influenced.
6. The learned counsel next submitted that while the sanction to prosecute had been granted in respect of offence punishable under Section 161, 165(A) of the Penal Code and 5(1)(d) read 5(2) of the Prevention of Corruption Act, the learned trial Judge had charged the appellant with the aforesaid offences punishable with the help of Section 34 of the Penal Code. Since the sanctioning authority had not applied its mind as to whether the appellant should be allowed to be prosecuted for the aforesaid offence, with the help of Section 34 of the Penal Code, the prosecution, in view of the learned counsel, stood vitiated. He further submitted that though Section 165(1) of the Penal Code was referred to in the sanction, no charge was made under the said Section. This connection has to be rejected because if sanction has been accorded for prosecution of a person for commission of offence by himself, not separate sanction would be required for his prosecution for involvement in the said offence in furtherance of common intention with any other offender. It would not necessitate any fresh application of mind to the facts and therefore, sanction could not be faulted on such a ground. The learned counsel for accused Vinayak however, had no such objection to the sanction accorded by P.W. 3 Varti for the prosecution of Vinayak.
7. With these preliminaries, it may be appropriate to go to the substance of the matter. The learned counsel for the appellant Ramgirwar submitted that Ramgirwar had not made any demand of money from the complainant. Infact, Ramgirwar was mere a clerk working with Vinayak and therefore, was not competent to do any favour. Relying on the decision of the Supreme Court in Trilok Chand Jain Vs. State of Delhi, reported at 1975(4) SCC 761 the learned counsel submitted that since the appellant Ramgirwar was unconcerned with the work for which bribe was demanded, even if the demand and acceptance is proved, it should not result in conviction of the appellant. The facts of the case, on which the learned counsel relies, are slightly different and therefore, the ratio thereunder cannot be applied to the case at hand. In that case the amount was allegedly taken for one Gupta by the appellant therein who was a mere labourer. Such is not the present case. Here, the appellant Ramgirwar is a clerk of appellant Vinayak and therefore, considering the practice in the Courts of Naib Tahsildars, where handing over certificate is done by the clerks themselves, Ramgirwar can not escape liability only because he did not have authority.
8. Appellant Ramgirwar was required to raise such contention because evidence of complainant P.W. 1 Ramsingh, and Panch P.W. 2 Waman, fully establishes that Ramgirwar had received bribe amount and had been caught with it. The evidence of P.W. 6 Maroti and raiding officer P.W. 9 P.I. Deshmukh show that tainted money was taken out from the pocket of Ramgirwar. Realising that he had been indeed trapped in a fool proof trap, appellant Ramgirwar gave an additional statements at Exh.88. He stated that he had indeed received money because the complainant told him that the Naib Tahsildar had asked the complainant to hand over money to Ramgirwar for purchasing saving certificate. If the amount was required to be deposed of purpose of the saving certificate Ramgirwar would certainly have taken out the concerned receipt book and issued a receipt or atleast should have been in the motion of preparing the receipt when the raid took place.
8-A. The defence, that the revenue authorities routinely ask for purchase of saving certificate while discharging their official functions, has first not been established and secondly, even if purchase of such saving certificate is presumed to be insisted upon by such authorities, in order to promote small savings, or to meet target of such small savings, the authorities would, to be, on the safer aside ask the person concerned to purchase saving certificates from the small saving agents and show them before doing the official favour, which is sought. It has to be found out whether the money was indeed received for the purpose of small savings, as claimed by the appellant Ramgirwar. The cross-examination of the complainant, at the instance of appellant Ramgirwar shows that in the very first paragraph of the cross-examination (Paragraph 6 of Exh.27) the complainant was made to say that accused No.1 had told the complainant that he would have to pay Rs.200/- for issuing solvency certificate. There is no reference to money being asked for purchase of small saving certificate in the beginning. The suggestion about small saving certificate was made towards the ends of this paragraph to the effect that the amount was taken for deposit in the "saving account" (and not for purchase of the saving certificates). It is also pertinent to note that in the cross-examination of P.W. 2 Waman, on behalf of appellant Ramgirwar, it was suggested to Waman that accused No.1 i.e. Vinayak had asked accused No.2 Ramgirwar to retain the amount if brought by the complainant. It was again suggested to the witness that accused No.1 had loudly told accused No.2 to received the amount from the complainant and then file was put on the table of accused No.2, though both the suggestions were denied by the witness. Thus, it was specifically the defence of accused No.2/appellant Ramgirwar that he had received money at the instance of accused No.1 Vinayak and not towards any small saving as he tried to make out.
9. The learned counsel for the appellant Ramgirwar next submitted that there was no evidence to show that the appellant had made any demand of money from the complainant. Relying on the decision in Subhash Parbat Sonvane Vs. State of Gujrat, reported at (2002)5 SCC 86, the learned counsel submitted that the expression 'obtains for himself' requires something more to be proved than "acceptance". 'Obtaining' undoubtfully implies 'demand'. The learned counsel submitted that there was no evidence that the appellant Ramgirwar had made any demand from the complainant. The evidence of complainant at Exh.27 would show that on complainant's asking appellant Ramgirwar, whether solvency certificate was ready, Ramgirwar asked him, whether he had brought what he was told by Saheb. Similar is the version of P.W. 2 Waman. Both the witnesses state that thereafter Ramgirwar received money by his right hand.
9-A. According to the learned counsel, this would indicate at best acceptance, and not obtaining for himself, but for any other person. It is not clear as to how the learned counsel can say that there was mere acceptance, but not demand, when both the witnesses state that the appellant had specifically asked, whether the complainant had brought what was asked for by the officer. The learned counsel sought to contend that this may have reference to some documents etc. while may be necessary for giving solvency certificate. It is not necessary to indulge in every possible speculation to find an excuse for the appellant. Every sentence has to be read in the context in which the event takes place. Since previously there has been a interaction between the parties and the complainant had been asked specifically to bring money, the question put by Ramgirwar obviously related to money which complainant was supposed to bring. Therefore, this judgment in Subhash Sonvane's case is unhelpful to the appellant.
10. The learned counsel for the appellant Ramgirwar submitted that as per appellant Vinayak Wakhare's contention in his statements at Exh.87 Wakhare had been in contact with Ramgirwar only for five days before the raid, since Wakhare had been very recently transferred to the post of Naib Tahsildar at Samudrapur. Relying on the decision in Virendranath Vs. State of Maharashtra, reported at AIR 1996 SC 490, the learned counsel submitted that the acceptance of amount at the instance of others would not attract the penal provisions of the Prevention of Corruption Act. The question as to whether the amount in its entirely was received by Ramgirwar on behalf of Naib Tahsildar Wakhare, or on their joint behalf, is for the accused to sort out. The provision of Section 5(1)(d) clearly makes it punishable to obtain or accept for himself, or for any other person, any valuable thing. Acceptance for Wakhare, Naib Tahsildar, would not be a mitigating circumstances for appellant Ramgirwar.
10-A. The learned counsel for the appellant Ramgirwar next submitted that the testimony of P.W. 2 Waman had been discarded even by the trial Court because Waman admitted having entered the witness box after refreshing his memory by reading the statement recorded by the Investigation Officer. This admission can be found in paragraph No.4 of the deposition at Exh.34. It may be seen that the deposition of the witness was recorded on 2-3-1995 in respect of the trap on 5-9-1988 i.e. about seven years after the incident. It is notorious that a trap implies a number of minutes details, which, if missed, could led to unsavory consequences. Therefore, in the context of delay in the trials, if the witness had read his earlier statement, it can only cast a shadow on the veracity of the statement. Such statement may not be readily relied on. It does not however, follow that even if such a statement is corroborated by other unimpeachable evidence, it should be rejected in toto. Even without the evidence of P.W. 2 Waman, the admission by appellant Ramgirwar that he did not receive money and his own suggestions that he did receive money on behalf of appellant Vinayak would establish that the complainant was made to pay a bribe of Rs.150/- for obtaining solvency certificate.
11. The learned counsel for the appellant Vinayak Wakhare submitted that the demand by Wakhare was not at all proved. He pointed out that according to the complainant accused Wakhare had ordered to issue solvency certificate on the very day when the complainant approached him. It may be seen from the evidence of P.W. 4 Govinda who had accompanied the complainant to Wakhare, that the Tahsildar was ready to do needful on the very same day. Therefore, the learned counsel wondered as to why the complainant should have been required to bring money. The readiness of Tahsildar to release person person concerned immediately has to be read in the context of demand of Rs.200/- and also statement of Ramsingh that he did not have necessary cash with him. Therefore, this readiness does not help appellant Vinayak.
12. The learned counsel for the appellant Vinayak next submitted that Ramsingh was examined in the departmental enquiry also. In the departmental enquiry the complainant had allegedly, told that the demand was made by Ramgirwar, Clerk, and not by Wakhare and that he did not mention name of Wakhare in the complainant because Wakhare did not demand any bribe. These contradictions were duly proved by examining Laxmikant Joshi who was the Enquiry Officer. These contradictions in the statement of Ramsingh in the Departmental Enquiry would have eroded credibility of Ramsingh, had any suggestions been made to show as to why Ramsingh later on included name of Wakhare also.
12-A. The learned counsel for the appellant Vinayak submitted that P.W. 2 Waman had stated that when he was called as panch in the office of Anti Corruption Bureau, the officer had given him two papers for being read. One was complaint written by the Police Officer and other was application by the complainant. The learned counsel for the appellant submitted that the application which has been brought by the complainant has been suppressed, and that in the said complaint the complainant had not made mention of the involvement of appellant Vinayak. The complainant had admitted in his cross that he had handed over a complaint drafted by petition writer to Shri. Deshmukh. He denied that he had not mentioned name of accused Vinayak in the Anti Corruption Bureau. P.W. 9 P.I. Deshmukh categorically rules out that the complainant has submitted any written complaint drafted by a petition writer to him on 5-9-1988. Yet it is not shown as to what interest P.W. 9 P.I. Deshmukh would have in falsely implicating the Naib Tahsildar. The complaint at Exh.56 shows that Wakhare had demanded a sum of Rs.200/- from complainant, and on his protesting that it was too much and he would be able to give Rs.150/- Wakhare told him to hand over the amount to him and collect the certificate immediately then and there.
13. The learned counsel for the appellant Vinayak submitted that since the appellant had already passed order for releasing complainants relation on bail of Rs.2,000/- there was no question of seeking solvency certificate of Rs.15,000/- or the complainant getting such certificate prepared, or approaching the appellant for getting such certificate. He further submitted that the appellant was absolved in the Departmental Enquiry and since standard of proof in the Departmental Enquiry was less stringent than that in the criminal trial, the appellant ought to have been acquitted by the learned trial Judge. Criminal trial is an independent proceedings, to be decided on the basis of evidence tendered at such a trial. If in the departmental enquiry the complainant was shown to have, for whatever reasons, stated that the appellant Vinayak had not demanded money and on that ground that appellant was absolved, it does not follow that the evidence of complainant Ramsingh at the criminal trial should be discarded. At the trial Ramsingh had specifically stated about the demand by Wakhare. The record of evidence in the departmental enquiry cannot replace the evidence which is taken at the trial, since evidence at enquiry does not have the same sanctity. Further since there is absolutely no reason for Ramsingh to falsely implicate the appellant coming forth, and since it is not a normal human tendency to unnecessarily implicate a person, knowing fully well the consequences of such implication, the learned trial Judge rightly accepted the word of Ramsingh tendered before him. Consequently, the fact that the appellant Vinayak was absolved at the departmental enquiry can be of no use, particularly in the face of suggestions made to the witnesses at trial on behalf of other appellant Ramgirwar, who should have known for sure that when he suggested that the amount was received on behalf of Wakhare, the story that the amount was demanded by Wakhare could not be disbelieved.
Considering the lapse of time, both the learned counsel request that eight weeks time may be granted to the accused/appellants to surrender.
If the accused/appellants do not surrender before the learned Special Judge within eight weeks, the learned Judge shall issue appropriate process to have the accused/appellant arrested and committed to prison to serve their sentence.