Criminal Appeal No.161 of 1997

21st September, 2006

Petitioner Counsel: Shri. N. S. BHATTAD
Respondent Counsel: Shri. J. B. JAISWAL

Cases Cited:
Shankar Mohaniraj Ghotankar Vs. State of Maharashtra, 1993 Mh.L.J. 53 [Para 13]
Sharad Waman Buchake Vs. State of Maharashtra, 1993 Mh.L.J. 284 [Para 14]
Dhirajlal Chatrabhuj Ratnagrahi Vs. State of Maharashtra, 1993 Mh.L.J. 644 [Para 15]
State of A.P. Vs. T. Venkateswara Rao, AIR 2004 SC 1728 [Para 17,23]
State of Orissa Vs. Ganesh Chandra Jew, 2004 ALL MR (Cri) 1492 (S.C.)=AIR 2004 SC 2179 [Para 18]
State of Maharashtra Vs. Dr. Budhikota Subbarao, (1999)3 SCC 339 [Para 19]
State of Himachal Pradesh Vs. M.P. Gupta, AIR 2004 SC 730 [Para 20]
Subhash Parbat Sonvane Vs. State of Gujrat, (2002)5 SCC 86 [Para 23]
Sita Ram Vs. State of Rajasthan, AIR 1975 SC 1432 [Para 24]
State through Inspector of Police. A.P. Vs. K. Narasimhachary, (2005)8 SCC 364 [Para 26]

JUDGMENT

JUDGMENT :- Being aggrieved by his conviction for offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act recorded by the learned Special Judge, Amravati, in Special Case No.12 of 1989 on 2-5-1997, the accused therein has preferred this appeal.

2. Facts, which led to prosecution of the appellants, are as under :

Complainant Suresh had a dispute about cultivation of land belonging to one Chandrakalabai. One Awdhoot, who is the son of Savitribai and who had purchased two acres of land from Laxman, the brother-in-law of Chandrakalabai, had objected to complainant Suresh's harvesting hybrid Jawar crop in the year 1988. On a report by Awdhoot, Suresh and his wife had been arrested by Daryapur Police. The accused was the Investigating Officer in that case. Suresh and his wife and been produced before the Magistrate and had been admitted to bail. Charge-sheet in the case, bearing Criminal Case No.176 of 1988, under Section 379 of the Penal Code had already been filed.

3. A few days before 20th December, 1988, accused ASI Khan told complainant Suresh that the accused could convince Awdhoot and Awdhoot's father-in-law Akaram Bakde to get the matter compromised. The accused demanded a sum of Rs.100/- for bringing about that compromise and asked Suresh to pay that amount on 20th December, 1988 near Daryapur S.T. Bus Stand at about 4 to 5 p.m. The complainant agreed, but went to Anti-Corruption Bureau and gave a complaint.

4. After necessary preparation and conducting pre-arrest panchanama, the Anti-Corruption Bureau laid a trap on 20th December, 1988. Complainant Suresh met the accused in presence of P.W.2 Narsing, a panch witness, and upon the accused repeating his demand of Rs.100/-, paid the said amount to the accused, which the accused kept in the pocket of his pant. The raiding party swooped and caught the accused with the tainted money, which was seized from the pocket of his pant. Since the currency notes, which had been given as bribe, had initially been smeared with anthracene powder, upon seizure, the money as well as the pocket of the accused also were examined in ultra-violet light and showed fluorescence. After performing panchanama of trap, an offence was registered. Relevant documents were seized in course of investigation, statements of witnesses were also recorded, the material was sent to the appointing authority of the appellant for grant of sanction to prosecute, which was duly given, and thereafter a charge-sheet was sent to the learned Special Judge at Amravati.

5. To a charge for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, the appellant pleaded not guilty and hence was put on trial; in course of which, the prosecution examined as many as ten witness and the defence examined one witness. It was the defence of the accused that a false case had been filed against him because he had arrested the complainant, whose brother is in Police Department. Upon considering the evidence tendered in the light of the arguments advanced, the learned Special Judge held the appellant guilty of offences punishable under Sections 7(1)(d) read with Section 13(2) of the prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for one year and fine of Rs.500/-; and in default of payment of fine, to suffer simple imprisonment for three months, on each count. Aggrieved thereby, the appellant has preferred this appeal.

6. I have heard the learned counsel for the appellant at sufficient length. I have also heard the learned Additional Public Prosecutor for the State.

7. In this case, there is no dispute about the fact that complainant Suresh had been charge-sheeted by the accused for offence punishable under Section 379 of the Penal Code at the instance of one Awdhoot. It was suggested to the complainant (P.W.1) in para 14 of his deposition that the accused did not at all meet the complainant at S.T. Bus Stand, Daryapur, on 18-12-1988, as the accused had been to Village Babhli along with one Vijay and Gawande for a prohibition raid. For this purpose, the accused had examined D.W.1 Mohan who was working as Senior Clerk in the Court of 2nd Joint Civil Judge, Junior Division, Daryapur. He stated that in Crime No.170 of 1988 under Section 66(1)(b) of the Bombay Prohibition Act, a seizure panchanama was included in the charge-sheet, which was filed in the Court on 29-12-1998. The seizure panchanama was drawn on 18-12-1988. He stated that Village Babhli is 3 kms. away from Police Station Daryapur and it takes about one hour to reach the Village on foot. This suggestion or the examination of D.W.1 Mohan, really does not make any sense, because D.W.1 Mohan admitted in cross-examination that one has to cross the Bus Stand of Daryapur to go to Village Babhli from Police Station Daryapur. Therefore, the story of the complainant that he met the accused at Bus Stand, Daryapur, on 18-12-1988, when the accused first made the demand of Rs.100/- for bringing about a compromise, cannot be said to be improbable.

8. As to the raid, it was suggested to the complainant (P.W.1) in cross-examination that the complainant had told the accused that the complainant wanted to pay a sum of Rs.100/- to Sarpanch of his Village and since the complainant was in a hurry to go to the S.T. Bus Stand, he asked the accused to keep a sum of Rs.100/- with the accused for paying to Sarpanch. The complainant had denied such a suggestion. It would thus be seen that the accused had not disputed that he had received a sum of Rs.100/- and was caught with the said sum. It is his explanation that he had received the money, because the complainant stated that the complainant was in a hurry and that the complainant wanted to pay a sum of Rs.100/- to Sarpanch and that the accused should do the needful. It is indeed not clear as to what prompted the accused to take such a defence. It is true that the complainant had referred to questions about presence of Sarpanch put by the accused before the money was actually paid. He stated that when he, the accused and panch Narsing were sitting on a bench in Subhash Hotel near S.T. Bus Stand, the accused had enquired as to whether Sarpanch had arrived, whereupon the complainant replied that Sarpanch had arrived and was sitting at the S.T. Bus Stand. Now if Sarpanch had actually arrived and was at the S.T. Bus Stand, there is absolutely no reason why the accused should accept Rs.100/- from the complainant for being paid to Sarpanch. It is pertinent to note that in para 13 of the cross-examination of complainant Suresh, it was suggested to him that Sarpanch Ramdas had been to the Police Station to offer himself as surety for complainant Suresh. Though the witness initially denied, he recollected that Sarpanch had been to the Police Station and was ready to give bail, and yet the accused had kept him in the lock-up. It is thus clear that the relations of complainant and Sarpanch are good. Both are from the same Village. It is, therefore, not clear as to why the complainant would require the help of the accused to pay a sum of Rs.100/- to Sarpanch, howsoever busy the complainant may be, or, as to why the accused should accept this amount for being paid to Sarpanch. Therefore, the entire story about accused having accepted a sum of Rs.100/- for being paid to Sarpanch, is not only a figment of imagination, but unimaginative imagination at that.

9. In view of this, it would be unnecessary to refer to the evidence of P.W.1 Suresh, panchas P.Ws.2 Narsing and 3 Mukund or 3 Raiding Officer Dy. S. P. Pande, whose evidence duly proves the events preceding the raid and culminating into the raid.

10. P.W.4 Gogte, who is an owner of betel leaves shop, opposite Subhash Hotel and who knew the accused, stated that the accused had received the bundle of currency notes and kept the notes in the pocket of his pant before the accused was caught by the raiding party. Even to this witness, it was suggested as to whether the accused had asked one of the persons with him to go to Hotel of Sadhubuwa to se whether Sarpanch had arrived or not.

11. It is not necessary to refer to the evidence of other witnesses, who stated about registration of offence, drawing a sketch of the spot, seizure of certain documents or the evidence of P.W.8 Superintendent of Police Shri. Rathod, who accorded sanction to prosecute the accused. The evidence does not disclose any defect to vitiate the conviction recorded by the learned Special Judge.

12. The learned counsel for the appellant submitted that the whole story that the accused demanded a sum of Rs.100/- for bringing about a compromise, was unbelievable, since after a charge-sheet was filed, the case could have been compounded only with the permission of the Court under Section 320 of the Code of Criminal Procedure. Therefore, there was nothing which the accused could do have or was expected to do in discharge of his official duties to favour the complainant. He submitted that since no favour was to be done or could have been done by the accused, even if it is presumed that the accused had accepted a sum of Rs.100/-, it would not attract the penal provisions of the Prevention of Corruption Act. For this purpose, he drew my attention to the following judgments.

13. In the case of Shankar Mohaniraj Ghotankar Vs. State of Maharashtra, reported in 1993 Mh.L.J. 53, Saldanha, J, held that the essence of accusation is that the gratification must be proved to have been a consideration for a corrupt activity in relation to an official act. It was observed in para 8 that there was a misnomer often prevalent that if the receipt of a certain amount of money by a public servant is proved that ipso facto it should be presumed to be tainted and the sequitur is that it was in relation to a corrupt practice in connection with an official duty. In that case, the complainant had alleged that the accused had threatened him with arrest and demanded a sum of Rs.200/- from him in order to avoid that arrest. It was urged in that case that since the entire matter in which the complainant was wanted was completed, the accused was powerless to do any favour to the complainant and, therefore, could not have threatened with arrest or demanded a sum of Rs.200/-. In this context, the Court went on to observe in para 8 that the prosecution had failed to establish that there existed any official act which the accused could have done or refrained from doing, in consideration of the payment.

14. The learned counsel for the appellant next relied on the decision of this Court in the case of Sharad Waman Buchake Vs. State of Maharashtra, reported in 1993 Mh.L.J. 284. In the case, the accused had attempted to divert 13 cement bags being unloaded from a railway wagon and thereafter he lodged a complaint that those bags were received short. Sarkate, RPF Inspector, who was investigating the complaint, refused to do anything other than following the rules. He also refused to accept the money from the accused. Sarkate informed the Anti-Corruption Bureau that the accused was attempting to bribe him by paying him Rs.4,000/-. Eventually when the accused had put a sum of Rs.4,000/- in the drawer of Sarkate's office, signal was given and the raiding party swooped. The accused was prosecuted under the Prevention of Corruption Act and convicted and sentenced. The learned counsel for the appellant drew my attention to para 19 of the Judgment, which was delivered in the above context. Saldanha, J. observed in para 19 that if Sarkate had refused to hush up the case and had refused to help the accused, it was impossible to believe that the accused would still put money into Sarkate's drawer. It was further observed that where the evidence states that the favour was not going to be done, it would be impossible to thereafter accept the prosecution story that illegal gratification was still given for this purpose. Drawing an analogy, the learned counsel submitted that in this case, the appellant had already sent a charge-sheet and, therefore, the appellant was not in a position to do anything in favour of the complainant. Consequently, the story that the accused would accept gratification should not have been believed.

15. In the case of Dhirajlal Chatrabhuj Ratnagrahi Vs. State of Maharashtra, reported in 1993 Mh.L.J. 644, Saldanha, J. observed that when the complainant was to close his shop, there would have no question of his expecting a favour from the accused, who was Assistant Rationing Officer, in order to pay a bribe to the accused. It was observed in para 7 of the Judgment that at the point of time when the complainant's shop was on the point of closure, he would not need any type of favours from anybody in the department and, therefore, the entire story put forward by him in relation to the visits of the accused and the amount of money that had passed assumes an entirely different complexion and a serious doubt is cast with regard to the true nature of the transactions if at all anything of that nature had taken place. In para 9 of the Judgment, to which the learned counsel for the appellant drew my attention, it was observed that it was only when there is a nexus with gratification and illegality or misuse of position, which is a matter of fact, which must be conclusively established, in addition to the receipt, that an offence can be said to be made out. An illustration of a loan taken by a public servant, whose wife had fallen seriously ill, was then cited. In para 11, it was again observed that a distinction was required to be drawn between an innocuous transaction, such as obtaining a loan and one where pecuniary advantage is sought by misuse of public office.

16. The learned Additional Public Prosecutor for the State submitted that none of the three judgments cited above would help the appellant in establishing that he had accepted the money for purely innocuous purpose. He submitted that as observed by this Court in para 11 in Dhirajlal's case, referred to above, the question whether the accused had abused his position and had acted with dishonest intention, is undoubtedly a question of fact and, therefore, it would have to be decided on the basis of the facts of the present case and the evidence tendered at the trial to prove these facts.

17. The learned counsel for the appellant submitted that if stage of doing a favour had not arisen, it would not be appropriate to accept evidence of receipt of tainted currency notes. For this purpose, he drew my attention to a judgment of the Supreme Court in the case of State of Andhra Pradesh Vs. T. Venkateswara Rao, reported in AIR 2004 SC 1728. In that case, on facts, it was held that the money in question was kept in advance by P.Ws.1 and 2 before the arrival of the accused at his house and since upon arrival he was asked by P.Ws.4 and 5 to bring the money, he did so, in course of which due to handling of currency, he came in contact with phenolphthalein power. In that case, the accused was Commissioner of Sangareddy Municipal Council and was alleged to have received a sum of Rs.400/- to award the work under a tender to the complainant, who was a successful tendere. It was also observed that the stage of awarding the contract had not come and, therefore, there could not have been any demand of bribe. Drawing an analogy, the learned counsel stated that since the question of compounding the offence was not at all within the purview of duties of the accused, the whole story about accused having demanded a sum of Rs.100/- or having received it, should have been rejected. The learned Additional Public Prosecutor countered by submitted that the decision in T. Venkateswara Rao's case is on the peculiar facts of that case, where, on facts, it was held that the accused had not received the money. Further there can be no parallel between the facts of the two cases, since, in the present case, the accused, as a part of police machinery investigating the crime, was giving an assurance of showing a favour to the complainant to compound the offence. The learned Additional Public Prosecutor rightly submitted that it could not be said, in these circumstances, that the stage for doing a favour had not been reached.

18. The learned counsel for the appellant then drew my attention to a series of judgments to illustrate as to what is an official duty. In the case of State of Orissa and others Vs. Ganesh Chandra Jew, reported in AIR 2004 SC 2179 : [2004 ALL MR (Cri) 1492 (S.C.)], in the context of necessity for sanction under Section 197 of the Code of Criminal Procedure, the Apex Court had considered the scope of the expression 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' and had observed that the Section does not extend its protective cover to every act or omission done by a public servant in service, but restricts its scope of operation to only those acts or omissions, which are done by the public servant in discharge of his official duties.

19. In State of Maharashtra Vs. Dr. Budhikota Subbarao, reported in (1999)3 SCC 339, which too was pressed in aid by the learned counsel for the appellant, the Supreme Court laid down the conditions for applicability of Section 197 of the Code of Criminal Procedure.

20. In State of Himachal Pradesh Vs. M.P. Gupta reported in AIR 2004 SC 730, the Court considered the scope of the terms 'official duty' with reference to Section 197 of the Code of Criminal Procedure observing that the Section has to be construed strictly.

21. I have carefully considered the enunciation of law in relation to the interpretation of term 'official duty' as appearing in Section 197 of the Code in the above decisions. It has to be borne in mind that these decisions are given in the context of protection available to the public servant for his official lapse and in this context, restrictive interpretation is preferred in order to avoid a public servant seeking protection for his acts, which may amount to abuse of his official duty. Therefore, the scope of expression 'official duty' appearing in Section 197 of the Code of Criminal Procedure and that of the expression 'official act' or 'official function' appearing to Section 7 of the Prevention of Corruption Act would not be the same. Here, even acts done under the colour of duty or pretended performance of duty would also be attracted.

22. The learned Additional Public Prosecutor submitted that Explanation (d) to Section 7 of the Prevention of Corruption Act clarifies the position by prescribing that a person, who receives gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done also comes within the expression 'a motive or reward for doing' appearing in the body of the Section. The learned Additional Public Prosecutor, therefore, submitted that even if the appellant might have lacked the authority to bring about a compromise or to secure composition of offences in the Court of Competent Magistrate, his promise to use his official position and good offices to influence the original complainant to agree to a compromise would amount to an offence punishable under Section 7 of the Prevention of Corruption Act.

23. The learned Additional Public Prosecutor next submitted that in view of the fact that the accused was caught with tainted money, is not disputable, presumption under Section 20 of the prevention of Corruption Act would be attracted and it would have to be presumed unless contrary is proved that the accused accepted the gratification as a motive or reward, as mentioned in Section 7 of the Act. The learned counsel for the appellant submitted that this presumption would apply only to the offence punishable under Section 7 and not one punishable under Section 13(2) of the Prevention of Corruption Act. For this purpose, he drew my attention to the decision of the Supreme Court in Subhash Parbat Sonvane Vs. State of Gujrat, reported in (2002)5 SCC 86. There can be no doubt that the presumption under Section 20 is available only for offence punishable under Section 7, but not clause (d) of Section 13(1) of the Prevention of Corruption Act, for which the appellant had been charged. In T. Venkateswara Rao's case, cited supra, the Supreme Court considered the import of expression 'may presume' and 'shall presume' appearing in Section 114 of the Evidence Act and contrasted the discretionary of factual presumption under the category 'may presume' with the legal presumptions or compulsory presumptions covered by the expression 'shall presume'. The Court then went on to observe that if the conditions envisaged are fulfilled, the Court will have to draw such a presumption.

24. The learned counsel for the appellant also relied on the decision of the Supreme Court in the case of Sita Ram Vs. The State of Rajasthan, reported in AIR 1975 SC 1432, on the question of presumption under the erstwhile Section 4 of the Prevention of Corruption Act. The facts of that case are altogether different. Since there it was held that the demand of bribe by the accused as also the story of payment of money by the complainant were not established beyond reasonable doubt, naturally, therefore, the question of presumption would not arise.

25. Apart from the presumption under Section 20, which would lead to a conclusion that the offence punishable under Section 7 is made out as rightly pointed out by the learned Additional Public Prosecutor, the offence under Section 13(1)(d) read with Section 13(2) was also made out, since the appellant is proved to have received a sum of Rs.100/- by abusing his position as a public servant and thus is guilty of criminal misconduct punishable under section 13 of the Prevention of Corruption Act.

26. The learned counsel for the appellant lastly submitted that when two views are possible and material on record does not lead to only one conclusion, i.e. guilt of accused, the accused should be acquitted and for this purpose, he relied on the judgment of the Supreme Court in the case of State through Inspector of Police, A.P. Vs. K. Narasimhachary, reported in (2005)8 SCC 364, where the Supreme Court had refused to interfere with the judgment of the High Court acquitting the accused on facts of that case. Such is not the present case.

27. In the result, it cannot be said that the learned Special Judge was in any manner in error in holding the appellant guilty of offences punishable under Sections 7 and 13(2) of the prevention of Corruption Act, since the demand of a sum of Rs.100/- by the accused for bringing about a compromise, obviously by using his influence, which emanated from his official position with the adversary of complainant Suresh, is proved, since the accused had himself sought to give a contorted explanation as to why he received a sum of Rs.100/- from the complainant.

28. The learned counsel for the appellant at this stage submitted that the appellant is now about 75 years' old, he had been dismissed from service and, therefore, does not get pension. The learned counsel further submitted that the appellant has a mentally retarded son and the appellant and his family are somehow surviving by staying in a Masjid and, therefore, a leniency ought to be shown in the matter of sentence.

29. Section 13(2) of the Prevention of Corruption Act prescribes that sentence of imprisonment shall not be less than one year, which is the sentence imposed upon the appellant. Hence, there is no scope of showing any further leniency.

30. In view of this, the conviction of the appellant and the sentence imposed upon him by the learned Special Judge, Amravati, for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is upheld.

31. Consequently, the appeal is dismissed.

Appeal dismissed.