2009 ALL MR (Cri) 384
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.R. GAVAI, J.
Raju S/O. Somla Pawar Vs. State Of Maharashtra
Criminal Appeal No.221 of 2004
15th September, 2008
Petitioner Counsel: Mr. JOYDEEP CHATTERJI
Respondent Counsel: Mr. P. M. SHINDE
Prevention of Corruption Act (1988), Ss.4(1), 7, 13 - Conviction under Ss.7, 13(2) - Accused alleged to have demanded bribe of Rs.600/- - Defence of accused that he had received money as stamping charges - False implication was not ruled out - After receipt of amount accused was required to attend to a telephone call and he could not complete writing of the receipt - Half written receipt was on record - Held, there was reason to doubt that what he had received was towards lawful charges and he was entitled to benefit of doubt. (Paras 15, 16)
Mahmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra, 1998(4) ALL MR 78 (S.C.)=1997 SCC (Cri) 894 [Para 6,13]
Tryambak Lalaji Binnar Vs. State of Maharashtra, 2002 ALL MR (Cri) 1261 [Para 6,14]
JUDGMENT :- The appellant has approached this court being aggrieved by the order passed by the learned Special Judge, Jalna, dated 1st April, 2004, thereby convicting the accused for the offence under Sections 7 and 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to suffer R.I. for one year and to pay a fine of Rs.500/-, in default, R.I. for one month, on each count.
2. Briefly stated, the case of the prosecution is that, complainant Vijay Vispute, was running the goldsmith business since 1979, for which purpose the licence under the Weights and Measurements Act, is required. It is the prosecution case that for the said purpose, the balance and weights are to be checked every year and every year the stamping is to be renewed. It is the case of the complainant that certain balance and weights were stamped and a certificate to that effect was received by the complainant. It is the case of the complainant that the person who had handed over the certificate also demanded Rs.600/- towards stamping charges. It is the contention of the complainant that after a period of 2 days, one person from Aurangabad visited the shop and disclosed his identity that he was working as Inspector in Legal Metrology, Jalna.
3. It is the contention of the complainant that the accused disclosed that he had come to the shop of the complainant to check the balance. The complainant states that thereafter he had put the balance before the accused. After verifying the balance, he opined that the balance is OK and he demanded Rs.600/- towards the fees for checking the balance. The complainant further states that he became suspicious since the company person had disclosed the charges as Rs.120/-. It is further the case of the complainant that since the complainant was not in a position to pay the charges on that day, the accused told him to visit the office any time after bringing Rs.600 and he will do the stamping. It is the prosecution case that since the complainant was not willing to make payment, he lodged a complaint with the Anti Corruption Bureau. Accordingly, a complaint was lodged with the Anti Corruption Bureau on 8th February, 1999. It is the prosecution case that a trap was conducted on 8th February and 9th February, 1999. The same was unsuccessful and as such, again a trap was arranged on 15th February, 1999.
4. It is the prosecution case that the accused was caught red handed while demanding and accepting the bribe amount. After investigation, charge-sheet came to be filed. At the conclusion of the trial, the learned trial court passed an order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeal.
5. Shri. Chatterji, learned counsel for the appellant submits that it was a specific defence of the accused that the amount of Rs.600/- was towards the official charges. He further submits that the said defence is fortified by the half written receipt which was written in handwriting of the appellant and the evidence of the prosecution witnesses itself. He further submits that it was the further defence of the appellant that the complainant was annoyed with the appellant since he had lodged many cases against the gold smiths and particularly, the relatives of the complainant under the Weights and Measurement Act and being enraged with this, he appellant has been falsely implicated in the case.
6. In support of this defence, various document regarding launching the prosecutions by the appellant against the relatives of the complainant were also placed on record. He, therefore, submits that the learned trial court has grossly erred in convicting the appellant. He relies on the judgment of "Mahmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra" reported in 1997 SCC (Cri) 894 : [1998(4) ALL MR 78 (S.C.)] and the judgment of the learned Single Judge of this court in the matter of "Tryambak Lalaji Binnar Vs. State of Maharashtra", reported in 2002 ALL MR (Cri) 1261.
7. Shri. Shinde, learned APP on the other hand submits that the learned trial court has rightly held that since the accused was caught red handed while demanding and accepting the bribe, a presumption was in favour of the prosecution. He submits that the said presumption has not been properly rebutted by the appellant and as such, he has rightly been convicted by the learned trial court. He, therefore, submits that no interference is warranted in the present appeal.
8. With the assistance of the learned counsel for appellant and the learned APP I have perused the evidence. For the purposes of deciding the appeal, the relevant evidence would be that of PW-1 complainant, PW-2 Tukaram, who at the relevant time was Assistant Controller of the Legal Metrology, Jalna, i.e. the immediate superior of the appellant and PW-4 Rajaba Lokhande, the panch witness.
9. From the evidence of PW-1 complainant Vijay, it can be seen that in so far as the first demand is concerned, he states that after verifying the balance, the accused opined that the balance is OK. He further states that the accused demanded Rs.600/- towards fees of checking the balance. However, he further states that he became suspicious about the demand of Rs.600, as the company person had disclosed him the charges to be Rs.120/-. He further states that no time was fixed for making the said payment. He further states that the accused told him to visit the accused at any time and after taking Rs.600/- he will do the stamping. According to this witness itself, the trap was unsuccessful on 8th and 9th February, 1999 and as such, again a trap was arranged on 15th February, 1999. This witness admits that when he alongwith the panch had entered in the office of the accused, the accused and other persons were present in the office. This witness in examination-in-chief itself states as under :-
"Then the accused asked me to deposit the charges of stamping of Rs.600/-. Then I removed Rs.600/- and put before the accused. The accused counted that currency, and those 6 currency having denomination of Rs.100/- each. I requested the accused to check and stamping the balance today only, while the accused was counting the notes. The accused asked me that he has checked the balance previously and directed me to remove the plate of balance and take back the balance. I removed the plate with the help of panch Lokhande. The accused put that name plate in the packet and put my name and address on that packet. I demanded the receipt of the measurement charges and accused disclosed that he will send that receipt in due course."
This witness further states that, they entered at the office of Atkore, i.e. superior of the appellant, alongwith whole raiding party members. The accused was attending one call on telephone. Then the accused became alert after looking them and put the receiver and threw the bribe amount on the mat. This witness has specifically admitted in his cross-examination that receipts used to be received subsequently after depositing the charges. This witness has further admitted in his cross-examination, that Anil Jagannath Vispute is his brother's sister's son and he was also doing the business of gold smith. He has stated that he does not know whether the accused had charge-sheeted Anil Vispute in two cases in which he was sentenced to fine.
10. PW-4, Panch - Rajeber Lokhande, also admits that 4 persons were present in the office of the accused when he had gone alongwith the complainant. This witness further states in the examination in chief that after the accused accepted the amount he kept that amount with him and disclosed the complainant that he will send the receipt at his shop address by his own person and he should pay charges to the said person. This witness further states in cross-examination that the talk of the complainant and the accused took place in presence of 4 persons who were sitting in the office.
11. From the evidence of PW-2 Tukaram Atkore, who, at the relevant time was Assistant Controller of Legal Metrology, i.e. immediate superior of the accused, it would reveal that he received a call at around 11.15 a.m. from Puja Watch Company and the said call was for the accused. Then accused entered his cabin and talked with the concerned person of that company on telephone. Thereafter, 4/5 persons came behind the accused. Dy. S. P. Tandale disclosed that they are from the Anti Corruption Office and that they are going to arrest the accused. He states that one constable caught hold of the hands of the accused. The accused threw the bribe amount on the mat. However, from his evidence it can be seen that the complainant disclosed that he had paid the bribe amount to the accused for stamping work. In his cross-examination this witness has specifically stated that the stamping charges goes up to Rs.600/- or above. He further states that the entry used to be taken in the Money Receipt Book for accepting the stamping charges. There was incorrect entry in the money receipt book showing name as Vijay Vispute and amount of Rs.600/- was mentioned. He further admits in cross-examination that the accused had disclosed about accepting the stamping charges from the complainant when his hands were caught hold. He further states that there was assault from the businessman on the accused and the reason for assault was that the accused had launched the prosecution against the businessman.
12. The receipt below Exhibit 59/1 which is dated 15th January, 1999 would show the name of the complainant and an amount of Rs.600/-. The perusal of documents Exhibits 59/2, 59/3, 59/4, 59/5 and 59/6 would reveal that the present appellant had launched various cases against Anil Jagannath Vispute for the offences under the Weights and Measurements Act and he was penalised for the same. The complainant has clearly admitted in his evidence that the said Anil Vispute is closely related to him.
13. The Apex Court, in the matter of "Mahmoodkhan" [1998(4) ALL MR 78 (S.C.)] (supra) has held that the primary condition for acting on the legal presumption under Section 4(1) of the Act is that the prosecution should have proved that what the accused received was a gratification. It has been held that unless the prosecution proves that the money paid was not towards any lawful collection or legal remuneration the court cannot take recourse to the presumption of law contemplated in Section 4(1) of the Act. In the case before the Apex Court, the appellant was working as a Sub-Registrar in the Sub-Registry office. The complainant had approached the appellant/accused for sending certified copies, on which he was told to make necessary application on stamp paper and pay an amount of Rs.20/- for each certified copy. The complainant had lodged a report to the Anti Corruption Bureau. A trap was led. The complainant presented an application for the copies of the sale deed which he required and then paid Rs.60/- to the appellant. As soon as the appellant had put the amount in his shirt pocket, the complainant gave signal, they rushed to the office and caught him red handed. The plea of the appellant in the said case was that he accepted the money by way of an advance which he was required to collect as per the rules in force. His further case was that before he could make any entry in the books he was caught by the anti-corruption officials on the premise that he received illegal gratification from the complainant.
While allowing the appeal, the Apex Court has held thus :-
"A closer scrutiny of the evidence unfurls a different profile on every one of those three reasonings. When the Sub-Registrar told the applicant that he had to bear Rs.20/- per copy, the mere fact that he did not use the word "advance" is hardly sufficient to conclude that what he required was not the advance amount which he was legally obliged to collect from the appellant. Similarly, the act of keeping the amount in his pocket is not decisive to conclude that it was intended for himself. Perhaps that could have been the mode of his keeping the money safe till that days amount was closed. The third reason cannot be used against the appellant because as soon as the appellant collected the amount the signal was transmitted by PW-1 which was immediately followed up as members of the anti-corruption squad rounded him up. Hence, there would not have been sufficient interval for the appellant to make entries in the Register or to prepare the receipt. Evidence shows that appellant told PW-1 to come to the office again on the next Monday or Tuesday only as an answer to the query made by PW-1 as to when he was to go there again for collecting the certified copies."
The Apex Court has further observed thus :-
"For the above reasons we entertain a reasonable doubt, on the admitted facts, that what the appellant collected from PW-1 could have been the charges which he was lawfully obliged to collect from any person applying for three copies of the sale deeds. In such a situation it is only just and fair that benefit of the aforesaid doubt is extended to the appellant albeit the last stage of this litigation."
14. In the matter of "Tryambak" [2002 ALL MR (Cri) 1261] (supra) the learned Single Judge has held that the very fact that complainant himself immediately demanded receipt from the appellant after handing over money, is an indication of the fact that he was conscious that it was being paid as legal remuneration and not as bribe.
15. In the present case, it can be seen that even according to the prosecution, after the complainant had given the tainted amount of Rs.600/-, the accused was caught in the office of the PW-2 while he was attending the phone call. It can be seen from Exh.59/1 that a half written receipt is also on record which shows the name of the complainant and an amount of Rs.600/-. PW-2 has himself admitted in his evidence that the fees of stamping charges can go up to Rs.600/- or above. The evidence of the complainant, so also the panch witness, would show that immediately after the amount was paid, the complainant asked for the receipt and the accused told that he would send it alongwith his person. The evidence of PW-2 would further show that the accused had immediately disclosed that the said amount of Rs.600/- was towards the stamping charges. It can further be seen that the defence of the accused that he had received the aforesaid amount of Rs.600/- towards legal charges is fortified by the evidence of PW-2, who admits that the stamping charges could be Rs.600/- or more and the receipt Exhibit 59/1 shows name of the complainant and the amount of Rs.600/-. Not only this, but the complainant, so also, the panch witness admits that immediately after the payment of the amount, the complainant had asked for the receipt and accused had stated that he will send it afterwards. As such, I find that the prosecution has failed to prove beyond reasonable doubt that the amount which was received by the accused was not towards any lawful collection or legal remuneration. As held by the Apex Court, even in the present case, it can be seen that immediately after the receipt of the amount, the accused was required to attend the telephone call and as such, it is quite probable that he did not have time to complete the receipt. However, a half written receipt is also on record. In view of the law laid down in the aforesaid cases, if there is reason to doubt that what was received by the accused was towards lawful charges, he is entitled to benefit of doubt.
16. The second defence of the accused regarding false implication also cannot be ruled out. The documents regarding prosecutions launched at the instance of the accused against said Anil Vispute who has been admitted by the complainant to be his relative, would show that various cases were launched against the said Anil Vispute at the instance of the present appellant, wherein he was penalised. The PW-2 has also admitted that the accused was assaulted by the businessman (complainant) and the accused had launched prosecution in police station. As such, this defence also appears to be probable defence.
17. Having regard to the totality of the circumstances, I am of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and as such, the accused is entitled to be acquitted.
18. In the result, the appeal stands allowed. The order of conviction and sentence of the appellant is quashed and set aside. His bail bonds shall stand cancelled. Fine amount, if any, deposited be refunded to the appellant.