2009 ALL MR (Cri) 741
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.R. KINGAONKAR, J.

State Of Maharashtra Vs. Nayankumar Shivappa Waghmare

Criminal Appeal No.135 of 1997

6th February, 2008

Petitioner Counsel: Mr. V. H. DIGHE
Respondent Counsel: Mr. C. K. SHINDE,Mr. V. G. SAKOLKAR

(A) Prevention of Corruption Act (1988), Ss.13(1)(d), 13(2) - Demand for illegal gratification - Proof - For the first demand, ordinarily, independent corroboration may not be available. (Paras 14, 30)

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Hostile witness - A part of the statement of a hostile witness which is found to be reliable can be acted upon. (Para 21)

(C) Prevention of Corruption Act (1988), Ss.13(1)(d), 13(2) - Evidence Act (1872), S.3 - Corruption charges - Testimony of prosecution witness - Mere antipathy of a witness towards the prosecution case could not be the ground to dislodge the entire story of the prosecution. (1985)1 Bom.C.R. 669 and (1994) Cri.L.J. 3738 - Ref. to. (Para 23)

Cases Cited:
Motiram Jaisingh Pawar Vs. State of Maharashtra, 1985(1) Bom.C.R. 669 [Para 26]
Suresh Kumar Shrivastava Vs. State of M.P., 1994 Cri.L.J. 3738 [Para 26]
Hazarilal Vs. State (Delhi Administration), AIR 1980 SC 873 [Para 27]
M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 ALL MR (Cri) 565 (S.C.)=AIR 2001 SC 318 [Para 28]
State of Maharashtra Vs. Narsingrao Gangaram Pimple, 1984 Cri.L.J. 4 [Para 29]
State of A.P. Vs. C. Uma Maheshwara Rao, AIR 2004 SC 2042 [Para 29]


JUDGMENT

JUDGMENT :- Challenge in this appeal is to judgment of acquittal rendered by learned Special Judge, Osmanabad in Special Case No.03/1993 whereby the respondent - Nayankumar Shivappa Waghmare came to be acquitted for offence punishable u/s.7 read with 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

2. The respondent was attached to Finance Section of Zilla Parishad, Osmanabad. He was dealing with Government Provident Fund and pension cases of retired staff members. Mirabai Narayanrao Deshpande (PW-10) was employed as Chief Sevika in Ekatmik Bal Vikas Yojna (Integrated Child Development Scheme), in Panchayat Samiti Office, Bhoom. She opted for voluntary retirement in 1992 due to her physical ailments. She had not received arrears of the Provident Fund amount and pensionary benefits. On 16.11.1992, she had filed an application with Panchayat Samiti, Bhoom to grant her the pensionary benefits. Since she was unable to move here and there, due to ailments, she gave an authority letter to her brother-Anant Deshmukh (PW-9) to pursue the work of realization of the pensionary benefits. She is a widow and has no issue. She was residing with her brother at Bhoom since some months before her retirement. Anant Deshmukh (PW-9) resides at Pune. He was previously member of Armed Forces. After his retirement, he is employed in private sector at Pune. He assured Mirabai that he would look after her work of pensionary benefits.

3. Briefly stated, the prosecution case is that Anant Deshmukh (PW-9) visited office of Zilla Parishad, Osmanabad from November, 1992 till fag end of January, 1993 on various occasions. He contacted the respondent in the context of the work about pensionary benefits payable to his sister. On 19th January, 1993 he met the respondent and enquired about the relevant file, pertaining to the pension papers of his sister. The respondent informed him that the relevant file was not received by his office. Though search was taken, yet the relevant papers and the file could not be located. A clerical staff member advised him to obtain outward number of the forwarding letter from the office of Panchayat Samiti, Bhoom. So, on next day, i.e. on 20th January, 1993, he went to Bhoom and obtained the outward number of the forwarding letter sent to the Zilla Parishad, Osmanabad. Thereafter, on 21st January, 1993 he again visited the office of the Zilla Parishad and got confirmed that the forwarding letter was received along with the file by office of the Zilla Parishad. He met the respondent but again received the same reply that the file was not with the latter. He then met the Office Superintendent and requested both of them to search the relevant file. The file was subsequently located. The respondent told him to obtain no dues certificate from Block Development Officer, Panchayat Samiti, Bhoom along with the GPF statement of his sister for the year 1987-88, which was missing. The respondent further advised him to obtain a letter of his sister that she was ready to accept the GPF amount excluding the missing credits for 1987-88 because it could have taken considerable time to reconcile the missing credits of that year. He then went to Panchayat Samiti, Bhoom and obtained no dues certificate in the morning along with required letter of his sister, requesting to issue authorization for drawl of the GPF amount, excluding the missing credits for the year 1987-88. He again contacted the respondent on the same day and delivered the no dues certificate and the letter of his sister.

4. The prosecution alleges that the respondent informed Anant Deshmukh (PW-9) that the GPF refund work may require about 2/3 months period, however it could be done by him within 8 to 10 days. The respondent further told him that if he desired to get the work done, then he will have to pay Rs.1,000/- for the pension work and Rs.1,000/- for the GPF work to him (respondent). The prosecution further alleges that though Anant Deshmukh (PW-9) pleaded with the respondent yet the latter did not budge. Reluctantly, Anant Deshmukh (PW-9) gave Rs.200/- to the respondent. The respondent asked him to contact him after 5-6 days. He told the respondent that he would pay the remaining amount and requested that the work should be completed within one week. He requested the respondent to give a specific date for his visit to the office. The respondent gave him the date of work as 30th January, 1993. He thereafter went back to Pune. He came to Osmanabad on 30th January, 1993 and met the respondent at the entrance of the Zilla Parishad office at the time of commencement of the office work, at about 10.45 a.m. The respondent assured him that the work was mostly completed and needed signatures of Deputy Accountant and Accountant for final order. He was asked to visit the office at about 2.30/3.00 p.m. when the work was to be over. He was asked to pay the balance amount. He told the respondent that he could not collect the entire amount, but had brought Rs.300/- and would pay the remaining amount of Rs.500/- when the cheque of the amount of the GPF would be encashed. He further assured that the amount of Rs.1,000/- pertaining to pension work would be paid after 2-3 months because clearance of the said file could have taken such long time. The respondent thereafter went inside the Zilla Parishad Office whereas Anant Deshmukh (PW-9) went to office of the Anti Corruption Bureau.

5. The prosecution further alleges that Anant Deshmukh (PW-9) met P.I. Gadade in the office of Anti Corruption Bureau and narrated the whole incident to him. His complaint was reduced into writing. Thereafter PI Gadade called Panch witnesses Uttam Bhutekar (PW-1) and Sahebrao Wanve (PW-3) from nearby Irrigation Office. He introduced Anant Deshmukh (PW-9) to the Panchas and asked them to read over his complaint. A trap was laid to apprehend the respondent soon after acceptance of the illegal gratification of Rs.300/-. At the relevant time, Anant Deshmukh (PW-9) was having Rs.425/- with him. Out of the same, Rs.300/- currency notes of 100 denomination each were separated. The remaining amount was kept in front upper pocket of his shirt. Three currency notes of Rs.100/- each were smeared with anthrasene powder after demonstration given to the Panch witnesses. PI Gadade instructed Anant Deshmukh (PW-9) to go to the office of Zilla Parishad along with Panch Uttam Bhutekar (PW-1). The latter was instructed to remain in company of Anant Deshmukh (PW-9) and to watch the conversation between them and their other acts . Another Panch - Sahebrao Wanve (PW-3) and members of the raiding party were to follow them from a short distance. As decided, Anant Deshmukh (PW-9) and the Panch went to the Zilla Parishad office. They contacted the respondent. The respondent took the file to the chamber of the Deputy Accountant for signatures. While the relevant file was in the chamber of the Chief Accountant, the respondent asked Anant Deshmukh (PW-9) to go outside with him. They came out and went to a nearby tea stall (Tapari). The trio sipped a cup of tea. Another Panch and members of the raiding party were keeping vigil from a short distance. After having a cup of tea, Anant Deshmukh paid the bill. The respondent demanded him the amount as settled in the morning. Thereupon, Anant Deshmukh (PW-9) handed over the tainted currency notes to the respondent. The respondent accepted the bribe amount by his right hand and took them in the left hand and inserted the same in the left front pocket of his pant. Immediately, thereafter, Anant Deshmukh (PW-9) signaled the raiding party, by moving his hand on the head. PHC Mane immediately darted ahead and caught both hands of the respondent. The other members of the raiding party immediately rushed to the place. Both the hands and the Pant of the respondent were examined in presence of the Panchas under ultra violate lamp and were found to bear bluish sparkle of the anthracene powder. The tainted currency notes were seized. A post trap Panchanama was drawn. The Pant put on by the respondent was also seized, after providing him another one which was fetched from his house. The relevant file of the GPF arrears case was also seized. Thereafter PI Gadade lodged the FIR. Relevant copies of Panchanama, complaint and other papers were forwarded to the Chief Executive Officer of the Zilla Parishad for the purpose of obtaining sanction. The competent authority gave sanction to prosecute the respondent. On basis of the material collected during course of investigation and the documents which were seized, the respondent was charge-sheeted for the offence punishable u/s.7 read with 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

6. To the charge (Exhibit-12) the respondent offered plea of "not guilty". He denied that he had demanded any amount from Anant Deshmukh (PW-9) towards illegal gratification for clearance of the Provident Fund case of Mirabai Deshpande. He further denied that he had accepted the bribe amount at the relevant time. According to him, the tainted currency notes were shoved in his Pant's pocket by Anant Deshmukh (PW-9) with a view to frame him in a false case. His defence was that due to the office politics he was falsely implicated in the criminal case.

7. At the trial, a fleet of one dozen witnesses entered the witness box. Several documents were relied upon by the prosecution in support of its case. The learned Special Judge held that the sanction granted by the competent authority for institution of the criminal case was legal and valid. The learned Special Judge, however, held that version of Anant Deshmukh (PW-9) indicated that tainted currency notes were shoved in the Pant's pocket of the respondent and, indeed, the latter had exhibited hostility towards the prosecution. Therefore, his version was quite doubtful. The learned Special Judge came to the conclusion that there could be no reason for Anant Deshmukh (PW-9) to contact the respondent prior to 28.01.1993 because the relevant file was not dealt with by him till then. The learned Special Judge held that the prosecution evidence falls short to prove the allegations about the demand of illegal gratification by the respondent and the acceptance of part thereof on 30th January, 1993. The respondent was given benefit of reasonable doubt and, therefore, was acquitted from the charge.

8. Mr. V. H. Dighe would submit that the findings of the learned Special Judge are incorrect and improper. He contended that version of Bhutekar (PW-1), who acted as Panch witness, could not have been brushed aside. He argued that the prior demand of Rs.1,000/- by the respondent is duly corroborated by Anant Deshmukh (PW-9). He argued that the presumption u/sec.20(1) of the Prevention of Corruption Act, 1988, ought to have been raised in this case. He urged to allow the appeal. Per contra, Mr. C. K. Shinde supports the impugned judgment.

9. Crucial points to be determined are as follows :

i) Whether it is proved beyond reasonable realm of doubt that the respondent demanded illegal gratification of Rs.1,000/- from Anant Deshmukh (PW-9) on 22nd January, 1993 as reward or remuneration to obtain clearance to the GPF refund amount of his sister Mirabai Deshpande (PW-10) ?

ii) Whether it is proved beyond a reasonable realm of doubt that the respondent accepted amount of Rs.200/- being part of the illegal gratification on the same day and it was agreed that remaining amount would be paid on 30th January, 1993 out of which the amount of Rs.300/- was accepted by him as bribe, which was other than the legal remuneration, from Anant Deshmukh (PW-9) in connection with the said work ?

10. It is uncontroverted that Mirabai Deshpande (PW-10) took voluntary retirement, as Chief Sevika in the midst of July, 1992 due to her illness. It is undisputed that on 16.11.1992 she gave an application for pensionary benefits including her claim for arrears of the GPF amount. The sanction from competent authority of Zilla Parishad, Osmanabad was needed for such payment. Her application, along with necessary documents, was forwarded by the Panchayat Samiti, Bhoom to the office of Zilla Parishad, Osmanabad for such purpose. Her evidence unmistakably shows that she had given authority to her real brother - Anant Deshmukh (PW-9) to do the needful for pursuing her pension case and for grant of the claim for the GPF amount. It is amply clear that though her application and the relevant papers were forwarded to the Zilla Parishad Office, yet, for about couple of months, no action was taken thereupon.

11. Coming to the version of Anant Deshmukh (PW-9), it would be manifest that he visited Zilla Parishad Office from time to time in order to pursue the work for grant of the GPF amount to his sister i.e. Mirabai Deshpande (PW-10). His version purports to show that between November, 1992 and January, 1993 he had met the respondent on 8-9 occasions. He narrated that on 19.01.1993, the respondent told him that the relevant papers were not received by his office till that day. Therefore Anant Deshmukh (PW-9) pleaded with the respondent and urged him to tell as to what would be the solution for the problem. The respondent did not give any reply. Some other clerks from the Zilla Parishad Office advised him to collect information about outward number of the forwarding letter sent by Panchayat Samiti, Bhoom and thereafter to get confirmed whether that letter correspondence was received by the Zilla Parishad Office. So, he went to Bhoom on 20th January, 1993 and obtained the outward number of the letter correspondence from the concerned clerk of that office. On the third day i.e. on 21.01.1993, he was back at Zilla Parishad Office, Osmanabad with the outward number and got it confirmed from the inward-outward clerk that such letter correspondence was received by the Zilla Parishad office. Though the concerned entry was signed by some clerk, yet non admitted the signature to be his and, therefore, Anant Deshmukh (PW-9) again met the respondent as well as the Office Superintendent. They searched for the relevant file for about one hour, yet it was not found. Anant Deshmukh (PW-9) was naturally dismayed. He told them that he would be constrained to approach Chief Executive Officer of the Zilla Parishad and would submit an application about the mess. Thereafter some 4-5 clerks again searched for the file. Ultimately, the relevant file was traced out by the clerical staff members.

12. The version of Anant Deshmukh (PW-9) further purports to show that the respondent took certain entries of the missing credits and at about 4.30 p.m. informed him that no dues certificate of the BDO was required, but was not in the file as well as the GPF statement for the year 1987-88 were not found in the file. He asked Anant Deshmukh (PW-9) to bring letter of Mirabai Deshpande (PW-10) to the effect that she was ready to accept the GPF amount excluding for the year 1987-88 and also to bring no dues certificate of the Block Development Officer (BDO), Panchayat Samiti, Bhoom. In the same evening, Anant Deshmukh (PW-9) approached the BDO at Bhoom and took the no-dues certificate, as required. He also collected the letter of his sister as required. On 22.01.1993, he handed over the documents to the respondent and requested him to prepare and pass the GPF bill as early as could be done. They partook a cup of tea in a hotel outside the office where he expressed his need for the GPF amount because his sister required prolonged medical treatment, which necessitated the finance. The version of Anant Deshmukh (PW-9) purports to show that until that time the respondent had not demanded any amount, but when such need of early payment was expressed by him, the respondent told him that the GPF refund work ordinarily required 2-3 months period, but he could do it within 8-10 days. The respondent told him that if he wanted the work to be done, then he will have to pay Rs.1,000/- for the pension work and Rs.1,000/- for the GPF work to him. In other words, when the respondent gathered that Anant Deshmukh (PW-9) was in need of the amount, then he had putforth the demand. The version of Anant Deshmukh (PW-9) further reveals that though he tried to plead with the respondent, yet the latter did not budge. Reluctantly, Anant Deshmukh (PW-9) gave Rs.200/- to the respondent at that time on demand made by the respondent and assured that the remaining amount would be paid when the work will be completed. The respondent gave him date 30th January, 1993 for completion of the remaining work.

13. Now, it is worthwhile to mention here that what happened on 22nd January, 1993 is elaborately narrated by Anant Deshmukh (PW-9). Nothing of significance could be elicited from his cross-examination on this score. The testimony of Anant Deshmukh (PW-9) reveals, no doubt, that he exhibited inclination to support the defence as regards the payment of tainted currency notes at the time of the trap. Still, however, there is hardly any material on record to dislodge the part of his version regarding demand of Rs.1,000/- by the respondent on 22.01.1993 to speed up the work of the GPF payment to his sister. In this context, the respondent did not explain why Anant Deshmukh (PW-9) would have attributed such kind of demand made by him for the alleged "speed money". This part of the statement of Anant Deshmukh (PW-9) is duly corroborated on account of recitals of his complaint (Exhibit-41). The same story is reflected in his complaint (Exhibit-41), as regards demand made by the respondent on 22.01.1993 for Rs.1,000/- being reward or remuneration to speed up the work for issuance of sanction order in respect of the GPF amount payable to Mirabai Deshpande (PW-10).

14. So far as the demand is concerned, one cannot be oblivious of the fact that for the first demand, ordinarily, independent corroboration may not be available. The respondent and Anant Deshmukh (PW-9) were the only two persons, who could have personal knowledge about the said demand. There was no enmity between them. There was hardly any substantial reason for Anant Deshmukh (PW-9) to falsely attribute such illegal demand to the respondent. The versions of Uttam Bhutekar (PW-1) and Sahebrao Wanve (PW-3) lend assurance to the fact that in their presence Anant Deshmukh (PW-9) gave details of such first demand made by the respondent to him. The first part of the story about such demand is corroborated by them. This part of the prosecution case is further corroborated by recitals of the pre-trap Panchanama (Exhibit-22). Both these Panch witnesses supported the prosecution case. They are independent witnesses. Their versions could not have lightly brushed aside. They too were not knowing the respondent before the day of the trap i.e. 30.01.1993. Needless to say, neither of them could have an axe to grind against the respondent.

15. Considering further part of the version of Anant Deshmukh (PW-9), it may be gathered, without difficulty, that he again approached the respondent on 30.01.1993 in order to verify whether really the work was being completed on that day. He met the respondent near the entrance of the Zilla Parishad Office at about 10.45 a.m. His version purports to show that the respondent reminded him and asked about payment of the balance amount. Thereupon, Anant Deshmukh (PW-9) told the respondent that he could not collect the whole amount but had brought Rs.300/- and would pay the remaining amount of Rs.500/- when the cheque of the GPF amount will be encashed. The GPF amount payable to his sister was around Rs.27,000/- to Rs.30,000/-. The respondent agreed to accept Rs.500/- afterwards at the time of encashment of the cheque. The version of Anant Deshmukh (PW-9) further shows that the pension work was likely to be delayed and, therefore, amount of Rs.1,000/- demanded for that work was to be given subsequently after about 2-3 months. It is argued that ordinarily the respondent could not have trusted the version of Anant Deshmukh (PW-9) because there had been some fracas between them on the earlier occasion when the file was to be searched. It is argued as to why the amount of Rs.500/- could be deferred when the work was to be done on the same day, is not properly explained by the prosecution. The argument is without much substance. The work of pension case was yet incomplete. So, had the remaining amount of Rs.500/- not been paid after encashment of the cheque issued for the GPF amount, the respondent could have put spokes in that work. Moreover, there was no point in refusing the available amount of Rs.300/- which Anant Deshmukh (PW-9) was ready to pay on that day.

16. On careful scrutiny of the versions of Anant Deshmukh (PW-9), Uttam Bhutekar (PW-1) and Sahebrao Wanve (PW-3), it would be amply clear that Anant Deshmukh (PW-9) thereafter approached the office of Anti Corruption Bureau (ACB), Osmanabad in the same noon. The respondent/accused had assured him to complete the remaining part of the formalities before about 3 p.m. on that day. After scrutiny of the versions of these three witnesses coupled with version of PI Nandkumar Gadade (PW-10), there is no room to entertain any doubt about the fact that the trap was laid after recording the complaint (Exhibit-41). The testimony of PI Nandkumar Gadade (PW-12) purports to show that he had requisitioned attendance of the two Panchas at his office without disclosing nature of the work. Both the Panch witnesses are employees of the office of Executive Engineer, Minor Irrigation Department, Osmanabad. They were deputed by the said office to attend the work. The version of PI Nandkumar Gadade would show that necessary instructions were given to both the Panchas. As per the plan of the trap, Anant Deshmukh (PW-9) and Panch Uttam Bhutekar (PW-1) were to go together to the office of the Zilla Parishad to meet the respondent. In presence of the said two Panchas, three currency notes of Rs.100/- denomination each were smeared with Anthracene Powder whereas the remaining untainted amount of Rs.125/- was kept in the front pocket of the shirt of Anant Deshmukh (PW-9). The Panchas were explained the use of Anthracene Powder and the results obtained due to the contact of such powder as could be verified under ultra violet rays. The versions of all the four (4) witnesses, considered together, would make it amply clear that the tainted currency notes were folded and were kept in the right side pant pocket of Anant Deshmukh (PW-9).

17. The versions of the above referred four (4) witnesses make it explicit that after the pre-trap Panchanama (Exhibit-22) was drawn, Anant Deshmukh (PW-9) and Uttam Bhutekar (PW-1) went together to the office of Zilla Parishad whereas the remaining members of the raiding party, including second Panch-Sahebrao Wanve (PW-3) trailed behind them. Their versions would make it manifestly clear that Anant Deshmukh (PW-9) and Uttam Bhutekar (PW-1) met the respondent at about 3.40 p.m. It is important to note that Uttam Bhutekar (PW-1) narrated as to what talk took place between Anant Deshmukh (PW-9) and the respondent. His version clearly shows that the respondent assured to get the work done quickly and had gone to cabin of his superior officer. The version of Uttam Bhutekar (PW-1) further discloses, unmistakably, that after some time they and the respondent came out of the Zilla Parishad office, crossed road and went to a nearby tea stall (Tapari). His version goes to prove the fact that after having a cup of tea, the respondent asked Anant Deshmukh (PW-9) whether he had brought Rs.300/-, as told in the morning. Thereupon, Anant Deshmukh (PW-9) gave positive answer. The version of Uttam Bhutekar (PW-1) further reveals that the respondent demanded the amount and thereafter Anant Deshmukh (PW-9) took out the tainted currency notes from his right side pant pocket and gave them to the respondent. He categorically stated that the respondent accepted the tainted currency notes by his left hand and kept the same in his left side pant pocket. It was thereafter that Anant Deshmukh (PW-9) gave signal to the raiding party members.

18. The versions of both the Panch witnesses and PI Nandkumar Gadade (PW-12) go to prove the fact that Police Head Constable Mane immediately darted ahead and held both hands of the respondent. They narrated as to how the tainted currency notes were removed from left side pocket of the pant of the respondent. Their versions go to show that the fingers of both the hands of the respondent were found to bear bluish sparkle. The pant pocket also bore bluish sparkle likewise that of the tainted currency notes, when examined under ultra violet lamp. The second trap Panchanama (Exhibit-24) is duly corroborated by both the witnesses. It is also corroborated by PI Nandkumar Gadade.

19. There is ample evidence on record, therefore, to prove the fact that the respondent had demanded Rs.1,000/- from Anant Deshmukh (PW-9) on 22.01.1993 by way of "speed money" on sensing his need. It is duly proved that Anant Deshmukh (PW-9) paid Rs.200/- at the relevant time, though unwillingly, and had assured to pay the balance amount after the work was done. According to Uttam Bhutekar (PW-1), the three tainted currency notes were accepted by the respondent at the material time and the respondent himself kept the same in the left side pocket of his pant. The version of PI Nandkumar Gadade goes to show that the respondent was scared when both his hands were immediately caught by police constable Mane. At this juncture itself, let it be noted that the respondent did not give any immediate explanation as to how the tainted currency notes were found with him. Nor he explained about the insertion of such tainted currency notes in his pocket by Anant Deshmukh (PW-9) before commencement of the trial of the special case.

20. What emerges from the record is that Anant Deshmukh (PW-9), in the meanwhile, had change of mind. The trial of the special case had commenced before the learned Special Judge after more than 3 years and 8 months. Within the span of about 4 years, loyalty of Anant Deshmukh (PW-9) towards the prosecution case seemingly had diminished. He admitted that on 28.01.1993 the respondent had written something on the file and had told him that his concern with the file was over and if he was in hurry then he should meet the Saheb i.e. the Chief Accountant. He admitted that he had complained to the Office Superintendent of Finance Section against the respondent. He also admitted that on 30th January, 1993 the respondent had informed him that the order for release of the GPF amount will not be given by hand to him, but would be sent by post. He admitted that then there was some quarrel between them on such count. He also admitted that he thought that the respondent was avoiding the work and was harassing him. He admitted further that he then got annoyed with the respondent and thought that a lesson should be taught to the respondent regarding his such behaviour. He admitted further that while the respondent was having a cup and saucer in his hands, he had put the bribe amount in the left side pocket of the pant of the respondent. He immediately added, however, that he had put the tainted currency notes as per signal of the respondent. These admissions weighed with the learned Special Judge and, therefore, the respondent was given benefit of doubt.

21. Let it be noted that the prosecution had given an application at the time of commencement of arguments that Anant Deshmukh (PW-9) had turned hostile. The prosecution had sought permission to cross-examine Anant Deshmukh (PW-9). The permission was declined by the learned Special Judge. The said application (Exhibit-58) was turned down. It is obvious that though at late stage, yet the prosecution had declared Anant Deshmukh (PW-9) to be a hostile witness. The declaration of hostility and leave to cross-examine such witness are two distinct things. The Court may grant such leave when foundation is made out, at any stage of the trial, when the witness has exhibited his adverse attitude towards the prosecution. Though Anant Deshmukh (PW-9) was not cross-examined by the prosecution yet his declaration of being a hostile witness can be considered. It is well settled that a part of the statement of a hostile witness, which is found to be reliable can be acted upon.

22. Now, the first part of the story narrated by Anant Deshmukh (PW-9) is not at all shattered during course of the cross-examination. His version that the respondent had demanded Rs.1,000/- to expedite the work of the GPF payment to Mirabai Deshpande (PW-10) on 22.01.1993 is a duly proved fact. Indeed, had there been any serious quarrel between him and the respondent on 30.01.1993 then they would not have gone together to the hotel at about 4.00 p.m..

23. As regards the manner of payment of the tainted currency notes, independent Panch - Uttam Bhutekar (PW-1) has no business to tella lie. His version categorically shows that after they took a cup of tea, there was conversation between Anant Deshmukh (PW-9) and the respondent about the stage of the work of the GPF file. The respondent told Anant Deshmukh (PW-9) that the work was as good as done and soon the final sanction under signature of the competent officer will be obtained. It was thereafter that the respondent asked Anant Deshmukh (PW-9) to pay the amount of Rs.300/- as assured by him in the morning. Thus, the demand is proved by the independent Panch. It is categorical version of Uttam Bhutekar (PW-1) that the tainted currency notes were handed over to the respondent by Anant Deshmukh (PW-9) and the same were kept by the respondent in the left side pant pocket. Not only this, but the version of Sahebrao Wanve (PW-3) would make it amply clear that he, PI Nandkumar Gadade and others were in the proximity of the tea stall when the acceptance of the tainted currency notes was made by the respondent. Significantly, Sahebrao Wanve (PW-3) deposed that after payment of the bill of the tea, the trio came out up to little distance near the tea stall and thereafter Anant Deshmukh (PW-9) took out the tainted currency notes from his right side pant pocket and the respondent received those currency notes in his right hand and then shifted them in his left hand and put the same in the left side pocket of his pant. Forthwith, Anant Deshmukh (PW-1) gave signal to the raiding party by moving his left hand on his head. Thus, there is reliable eye-witness account of independent Panch witness - Sahebrao Wanve (PW-3) to infer that the tainted currency notes were given in the right hand of the respondent. Both the Panch witnesses were examined about one month before entry of Anant Deshmukh (PW-9) in the witness box. It can be gathered, therefore, that when the Panch witness could not render any help to the defence, there could be frantic efforts to persuade Anant Deshmukh (PW-9) to give some admission during course of cross-examination so as to bolster up the defence. Mere antipathy of a witness towards the prosecution case could not be the ground to dislodge the entire story of the prosecution.

24. Mr. Shinde, learned advocate appearing for the respondent, invited my attention to the version of Bhimrao Mane (PW-2), Riyaz Zikare (PW-4) and Bharat Kulkarni (PW-5). He would submit that when the GPF file was with Bhimrao Mane (PW-2) till 21.01.1993, then it was absolutely not possible for the respondent to give any assurance to Anant Deshmukh (PW-9) about the work of the GPF payment. He would submit that when there are admissions of Anant Deshmukh that on 28.01.1993 the respondent had completed the work on his part, it was improbable that any amount could have been demanded by way of illegal gratification for completing the work and Anant Deshmukh (PW-9) could have paid it to the respondent. He supports reasoning of the learned Special Judge. The relevant file itself was seized at the material time. The entries in the relevant file (Exhibit-23) do not show that action was taken by the respondent only on 28.01.1993 and really he had completed his part of the work on that day. It is amply clear that the respondent had submitted office notes on 28.01.1993, 29.01.1993 and 30.01.1993 for clearance of the GPF file. It is only on 30.01.1993 that the final sanction was accorded to pay the amount of Rs.27,006/- after the necessary compliance was made. Earlier, the file moved for the opinion regarding advance amounts due, if any, and to ascertain whether any inquiry was pending against Mirabai Deshpande (PW-10). These are tale telling circumstances. It goes without saying that the respondent could not have, in fact, claimed that he had completed the work on his part as on 28.01.1993.

25. It need not be reiterated that the learned Special Judge found that the sanction (Exhibit-36) given by the Chief Executive Officer - Rajiv Jalota (PW-7) discloses application of mind. There is no tangible material to show that the competent officer did not apply his mind while according the sanction (Exhibit-36) for the prosecution of the respondent. His version and the speaking order (Exhibit-36) would sufficiently prove validity of the sanction order. The version of Baburao Hange (PW-8) purports to show that the respondent was working as Junior Clerk in the Audit Department and was given the charge of the GPF work during the relevant period. He narrated as to how the proposal for sanction of the GPF arrears is enrouted. He was attached to Zilla Parishad office, Osmanabad as the Chief Accountant. His version purports to show that on 30.01.1993 he received the proposal vide Exhibit-23 for the final sanction order. He accorded the sanction to pay the final GPF amount. Mr. Shinde would submit that the proposal was received by the respondent on 28.01.1993 as per endorsement in the file (Exhibit-23) and invited my attention to the version of Baburao Hange (PW-8) in this behalf. Mr. Shinde, vehemently contended that prior to 28.01.1993 the respondent had no reason to demand any bribe from Anant Deshmukh (PW-9) to clear the file. He would submit that the story about the demand on 22.01.1993 and payment of Rs.200/- by way of advance is thus unbelievable. I do not agree. The respondent seems to have made his submissions in the file after 28.01.1993. As stated before, the file itself could not be traced out untill 21.01.1993. The file was incomplete and, therefore, Anant Deshmukh (PW-9) was asked by the respondent to obtain no dues certificate from the Block Development Officer, Panchayat Samiti, Bhoom. The copy of certificate issued by the BDO on 21.01.1993 corroborates the fact that such certificate was issued, as stated by Anant Deshmukh (PW-9). It is pertinent to note that Smt. Mirabai Deshpande (PW-10) gave the letter dated 21.01.1993 to the effect that she may be paid the GPF amount excluding for the year 1987-88 about which the statements were not available in the file. How come that she gathered knowledge that statements of the GPF amount for the year 1987-88 were not available in the relevant file? The very fact that these two documents were subsequently included in the relevant file is indicative of the fact that Anant Deshmukh (PW-9) collected those documents on 21.01.1993 and gave them to the respondent on 22.01.1993. It is obvious that the respondent got included the relevant documents dated 21.01.1993 in the GPF file of Mirabai Deshpande (PW-10) and thereafter assured Anant Deshmukh (PW-9) to get the work done by 30th January, 1993. It is for such reasons, probably, that after 28.01.1993 he really speeded up the work. In his statement u/s.313 of the Code of Criminal Procedure, the respondent did not state that prior to 28.01.1993 he had not dealt with the relevant GPF file of Mirabai Deshpande (PW-10). He simply denied that the relevant documents were collected by Anant Deshmukh (PW-9) on 21.01.1993 and were submitted to him on 22.01.1993. It was not his statement u/s.313 of the Criminal Procedure Code that he had no concern with the relevant file after 28.01.1993. Under the circumstances, it is difficult to say that on 22.01.1993 Anant Deshmukh (PW-9) could not have met the respondent in connection with the work of the GPF clearance and the latter could not have demanded the alleged illegal gratification of Rs.1,000/- in order to do the work with promptitude. The finding of the Trial Court, in this context, is imporper and incorrect.

26. Mr. Shinde, learned advocate for the respondent relied upon two authorities handed down by Single Benches of this Court and MP High Court. They are : "Motiram Jaisingh Pawar Vs. The State of Maharashtra", 1985(1) Bom.C.R. 669 and "Suresh Kumar Shrivastava Vs. State of M.P." (1994 CRI.L.J. 3738). In Motiram Jaisingh Pawar (Supra) the learned Single Judge found that the evidence about demand and negotiations was untrustworthy. It was for such reason that the testimony of the complainant could not be relied upon. In Suresh Kumar Shrivastava (Supra) there was no evidence that the accused had demanded the bribe or voluntarily accepted it at the time of trap. Both the said authorities, with due respects, are not applicable to the fact situation of the present case. Here is a case in which the prosecution successfully proved that there was prior demand of Rs.1,000/- by the respondent being remuneration or reward for doing the official work, namely, to clear the GPF file of Mirabai Deshpande (PW-10). Though Anant Deshmukh (PW-9) indicated his hostility towards the prosecution case, yet part of his version stands corroborated by the record and on account of unimpeached versions of the Panch witnesses as well as that of PI Nandkumar Gadade (PW-12).

27. In Hazarilal Vs. State (Delhi Administration) (AIR 1980 SC 873), the Apex Court observed as follows :

"It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW-3. Under Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW-3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW-3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the Courts below."

That was a case in which a police constable was convicted u/s.5(2) of the Prevention of Corruption Act, 1947, on the allegation that he demanded and received Rs.60/- from Sri Ram, who was examined as PW-3. In the trial court, the PW-3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including the PW-8 had spoken to the prosecution version. The tainted currency notes were recovered from pocket of the police constable. A contention was raised by the defence that in the absence of direct evidence to show that the police constable demanded or accepted bribe money, no presumption u/s.4 of the Prevention of Corruption Act of 1947 could be drawn merely on the strength of the recovery of the marked currency notes from the said police constable. It was in the context of such fact situation that the Apex Court made the above observations.

28. In "M. Narsinga Rao Vs. State of Andhra Pradesh" (AIR 2001 SC 318 : [2001 ALL MR (Cri) 565 (S.C.)]) three Judges' Bench of the Supreme Court dealt with somewhat similar case. The Apex Court held that presumption available u/s.20(1) of the Prevention of Corruption Act, 1988 is "compulsory" and not discretionary. So, where the prosecution proved that the accused received gratification from the complainant, it is permissible for the Court to draw legal presumption that said gratification was accepted as reward for doing public duty. In that case too, the two material witnesses i.e. PW-1 and PW-2 including the complainant (PW-1) had turned volteface in the trial court. They denied having paid any bribe money to the accused and also denied that he had demanded the bribe amount. Inspite of such hostility by those witnesses, the Supreme Court held that legal presumption available u/s.20(1) of the Prevention of Corruption Act, 1988 could be raised in the circumstances and the version of PW-7 DSP could be implicitly relied upon.

29. In "State of Maharashtra Vs. Narsingrao Gangaram Pimple" (1984 CRI.L.J. 4), the Apex Court held that where, in a trap case, the Judge magnified every minor detail or omission to falsify or throw shadow of doubt on the prosecution evidence, then it would be very antithesis of a correct judicial approach to the evidence of witnesses. It was held that if such a harsh touch stone is prescribed to prove such a case it will be difficult for the prosecution to establish any case at all. The Apex Court, in "State of A.P. Vs. C. Uma Maheshwara Rao and another" (AIR 2004 SC 2042) dealt with legal presumption available u/s.20(1) of the Prevention of Corruption Act, 1988. It has been observed that such presumption is compulsory when the factual background is available to reach conclusion that the accused accepted the tainted currency notes.

30. Considering totality of the circumstances and the evidence on record, I have no hesitation in holding that the versions of Uttam Bhutekar (PW-1), Sahebrao Wanve (PW-3) and PI Nandkumar Gadade (PW-12) would sufficiently establish the fact that the respondent accepted the tainted currency notes on 30th January, 1993 from Anant Deshmukh (PW-9). It is duly proved that he had demanded the bribe amount from Anant Deshmukh (PW-9) on 22.01.1993. It is also duly proved that in presence of Uttam Bhutekar (PW-1) the respondent had repeated the demand for the bribe amount. Hence, certain admissions of Anant Deshmukh (PW-9) by themselves could not be sufficient to dislodge the entire case of the prosecution. The learned Special Judge ought to have raised legal presumption available u/s.20(1) of the Prevention of Corruption Act, 1988. It being compulsive presumption, it goes without saying that the currency notes accepted by the respondent were for the purpose of payment of the bribe to accomplish the work of getting the sanction for payment of the GPF amount payable to Mirabai Deshpande (PW-10). Hence, I am of the opinion that the charge for offence punishable u/Ss.7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is duly proved against the respondent. The impugned judgment is, therefore, unsustainable and liable to be interfered with. Considering the fact that the incident took place before about 15 years, I am inclined to take somewhat lenient view as regards the sentence. It would suffice, if the respondent is directed to cumulatively suffer sentence of rigorous imprisonment for one (1) year on both the counts and to pay a fine of Rs.10,000/- (Rupees Ten Thousand only), in default to suffer rigorous imprisonment for 6 months more.

31. In the result, the appeal is allowed. The impugned judgment is set aside. The respondent - Nayankumar Shivappa Waghmare is convicted for offence punishable u/Ss.7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. He is sentenced to suffer rigorous imprisonment for a term of one (1) year and to pay a fine of Rs.10,000/- (Rupees Ten Thousand), in default to suffer rigorous imprisonment for six (6) months. He shall surrender to the bail immediately. The order pertaining to disposal of Muddemal property as directed by the learned Special Judge is maintained.

Appeal allowed.