2014 ALL MR (Cri) 3604
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.N. DESHMUKH, J.
Damodhar s/o. Lataru Titarmare Vs. State of Maharashtra
Criminal Appeal No.568 of 2004
7th July, 2014
Petitioner Counsel: Shri MAHESH SINGH
Respondent Counsel: Ms. T. UDESHI
Prevention of Corruption Act (1988), Ss.7, 13 - Illegal gratification - Evidence and proof - Prosecution case that accused working as maintenance surveyor, demanded and accepted bribe from complainant for mutation of his plot - Evidence of complainant silent about date on which accused allegedly demanded bribe - Evidence of independent witness does not corroborate prosecution case with reference to drawing of pre-trap panchanama - Evidence of panch witness is also contrary to evidence of complainant - There is no convincing evidence even on aspect of proposed signal directed to be given by complainant on accused accepting amount - Defence of accused that mutation cannot be effected for want of necessary charges required for carrying out measurement of land is more probable - Further, on date of incident, accused was not competent to record name of owner in official record - Guilt of accused not established for offence for which he was charged - Conviction of accused is quashed and set aside. (Paras 12, 16, 18, 19, 20, 21)
JUDGMENT :- This criminal appeal is preferred against the judgment dated 10/12.8.2004 passed by the Special Judge, Chandrapur in Special Case No.13/1994 by which appellant/accused is convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer simple imprisonment for six months and to pay fine of Rs.300/- and in default, to undergo simple imprisonment for one month. The appellant is also convicted for the offence under Section 13(1)(d) punishable under Section 13(2) of the said Act and sentenced to suffer simple imprisonment for one year and to pay fine of Rs.300/- and in default, to suffer simple imprisonment for one month.
2. Briefly, it is the case of the prosecution that on 21/2/1994, accused was working as Maintenance Surveyor at Mul, District Chandrapur. Complainant Baburao had contacted accused prior to the said date with regard to mutation of his plot when the accused is alleged to have demanded bribe of Rs.1,000/-, which amount was negotiated to Rs.600/- and was agreed to be paid by the complainant in two instalments of Rs.300/- each. Prior to the said demand, complainant had already tendered his application for mutation. As the complainant was not interested in paying bribe, he lodged a report with Anti Corruption Bureau, Chandrapur. On the basis of the said report, two panchas were summoned from the Office of M.S.R.T.C. The complainant as well as panchas were given demonstration about effect of sodium carbonate solution on phenolphthalein powder and were given necessary instructions. On completion of first panchanama, at around 4 p.m. on 21/2/1994, complainant, panchas and members of the raiding team visited the office of accused at Mul. It is the case of the prosecution that P.W.2 Kailash, who was to act as first panch and to accompany the complainant, was instructed accordingly. On complainant visiting the accused in his office, the accused came to be apprehended as he was found to have demanded and accepted first instalment of bribe of Rs.300/-. The amount was recovered from the office table of the accused. Panchanama of these facts was drawn on the spot. On the basis of the report lodged by the Investigating Officer, Crime No.34/1994 was registered by P.W.3 Dayaghan, Head Constable, which was further investigated by P.W.8 Ashok Pawar, Dy. Superintendent of Police, Anti Corruption Bureau. On completion of investigation and on obtaining sanction from P.W.5 Nazir Patel, charge-sheet came to be filed against the accused.
3. Charges were framed vide Exh.10 to which accused denied and claimed to be tried. His defence was of total denial. It is the specific case of the accused that the complainant on visiting his office on the day of incident, paid him money towards measurement charges. The learned Special Judge on considering the evidence, convicted the accused as aforesaid. Hence, this criminal appeal.
4. Heard Shri Mahesh Singh, learned Counsel for the appellant and Ms. Udeshi, learned Additional Public Prosecutor for the respondent. To effectively evaluate the submissions advanced by the learned Counsel for both the sides, I have scrutinized the evidence on record with their assistance.
5. P.W.1 Baburao (complainant), in his evidence, has stated that he had purchased a plot vide two different sale deeds of which he wanted to have mutation and thus, on accused visiting his village Dongargaon, Taluq Mul, District Chandrapur, he had contacted him for mutation of his said plot in his name when accused had demanded him Rs.1,000/-, which amount was negotiated to Rs.600/- and was agreed to be paid in two instalments of Rs.300/-. According to the complainant, prior to his meeting with the accused, he had filed his application for mutation vide Exh. 16 along with necessary copies of the Sale Deeds. The complainant further stated that thereafter he visited the office of Anti Corruption Bureau and lodged his report (Exh.17), upon which the Officer of Anti Corruption Bureau called two panch witnesses and on drawing a panchanama, arranged a trap.
6. On considering the above piece of evidence of the complainant, his evidence appears to be silent as to on what date, the accused is alleged to have demanded bribe. His report (Exh.17) is dated 21/2/1994. In the light of the above evidence of the complainant, it does not appear to have been brought on record by the prosecution as to how many days after the alleged demand, report (Exh. 17) came to be lodged by the complainant with the Anti Corruption Bureau. In this context, if report (Exh.17) is perused, it reveals that prior to the alleged demand, of which no date is deposed by the complainant, on 13/12/1993 he had met accused in his office and had given his application and necessary documents of which accused took entry in the register. The report (Exh. 17) further reveals that at that time, the accused had informed the complainant that his Sale Deeds were executed long before and at that time, had demanded Rs.800/- for effecting mutation which amount was negotiated to Rs.600/-. The contents of Exh. 17 further reveal that thereafter on 17/12/1993 and 18/12/1993, the accused visited Dongargaon for official work and with reference to the application of the complainant, had visited the site and had demanded Rs.500/- for effecting mutation, upon which the complainant informed that he was not having that much amount, upon which the accused informed that till that amount is paid, mutation would not be effected. It further reveals that thereafter on 17/2/1994, accused had visited Dongargaon and informed complainant that he had not paid the amount in spite of his visiting the site when again complainant informed that he was unable to make payment of Rs.500/- and would pay the said amount in two instalments when accused, according to the contents of Exh. 17, stated to the complainant to pay Rs.300/- on 21/2/1994, for which complainant agreed. It thus appears that thereafter complainant on the same day lodged Exh. 17 with Anti Corruption Bureau.
7. As already stated above, there is no evidence of complainant about various contentions as found in his report. In fact, from his evidence, it is clear that the complainant has even not deposed about any of these dates as mentioned in his report. In the circumstances, there is no corroboration from the evidence of the complainant to his report (Exh. 17).
8. The complainant has also stated in his evidence that on reaching Mul, at about 4 p.m. on 21/2/1994, he got down from the Police vehicle and was informed to take P.W.2 Kailash with him as a panch witness, upon which complainant informed to the Police officials that if any panch witness accompanies him, accused would not accept bribe in his presence and so he alone went to the office of the accused. The complainant has specifically deposed that by saying so, he alone went ahead in the office of the accused where he was present and met him. He has further stated that accused asked him whether he had brought the amount, upon which he took out the tainted notes from his pocket and gave the same to the accused, which he accepted and kept in his left side pant pocket.
9. Pausing here, it is material to note that admittedly according to the complainant himself, for the reason as stated above, he preferred to go alone to the Office of the accused and had instructed P.W.2 Kailash not to accompany him. It, therefore, reveals that when the actual incident of alleged demand and acceptance of bribe took place, complainant was not accompanied by an independent witness like P.W.2 Kailash, who according to the prosecution, was instructed to accompany the complainant and was further instructed to hear the conversation whatsoever takes place between complainant and the accused. The complainant has further stated that on making payment of bribe amount, he gave the proposed signal by wiping his face with his handkerchief, upon which members of the raiding team arrived in the office of accused when accused removed the currency notes and kept them under paper on his table.
10. In the light of the complainant's evidence as above, P.W.2 Kailash in his evidence has stated that on receiving instructions from his superior, he reached Office of Anti Corruption Bureau to act as a panch witness along with P.W.4 Ghanshyam when there was some work going on. According to him, he was not informed anything in the Office except intimating that somewhere raid would be effected and accordingly, he accompanied the Officers of the Anti Corruption Bureau in their vehicle to proceed to Mul. According to this witness, he was not aware as to what was the bribe amount to be paid and that complainant was directed to make payment in connection with some work. P.W.2 Kailash has further stated that he had gathered all these facts from the talk, which was going on in the Office of Anti Corruption Bureau. From the evidence of this witness, it is thus clear that on his reaching the Office of Anti Corruption Bureau, he was neither introduced to the complainant nor he had gone through the report (Exh. 17) of the complainant and was not aware of the purpose for which raid was to be carried out and had simply accompanied the Officers of the Anti Corruption Bureau. This witness has further stated that he had not even enquired from the complainant about anything nor had gone through any of the papers or his complaint. According to this witness, he had no personal knowledge about the trap. In the circumstances, his evidence does not corroborate the case of the prosecution with reference to drawing of pre-trap panchanama (Exh.27).
11. On the point of incident, P.W.2 Kailash has stated that before his reaching Mul, complainant had already reached Mul and was standing near the Office of accused and was waiting for members of the raiding team and then complainant went inside Office of the accused and came out within two minutes when P.W.2 Kailash was standing outside near one pan shop. It was further stated that one person, who was inside the Office came out shouting behind complainant and then he along with members of the raiding team entered the Office and apprehended the accused. P.W.2 Kailash thus also established that when actual incident of alleged demand and acceptance of bribe took place, complainant was not accompanied by the panch.
12. Reverting back to the evidence of the complainant, it has come in his cross-examination that he had filed his application for mutation after two-three years of his purchasing the plot. It has come in his evidence that he had purchased the plot from Mahagu Gowardhan and Tataram Gowardhan vide two Sale Deeds. The second Sale Deed was executed by son of Mahagu as his Power of Attorney. The complainant has admitted that Article 'B' is the same power of attorney and it is dated 19/10/1982. As already stated earlier, complainant admitted that he had filed application for mutation after two-three years of purchasing the plot. Therefore, it appears that such application might have been filed by the complainant sometime in the year 1984-85 and as his evidence is silent with reference to the alleged demand made by the accused prior to his lodging report on 21/2/1994, when report (Exh. 17) of the complainant is perused, since according to him, he had contacted accused on 13/12/1993 and accused had contacted him thereafter on 17/12/1993 and 18/12/1993 during his visit to village Dongargaon and lastly on 17/2/11994, it is seen that the case put forth on behalf of accused of his inability to effect mutation for want of necessary charges required for carrying out measurement of land is more probable.
13. In the light of the above facts, the case as set out by the accused while recording his statement under Section 313 of Code of Criminal Procedure in reply to question No.38 is that prior to the incident, the complainant had come to his office when he informed him to deposit money for measurement. On 21/2/1994 complainant went to the office of accused and kept Rs.300/- on the table towards measurement charges when the accused told complainant to deposit the amount by way of challan and went to bathroom when complainant kept the said amount below the newspaper on his table and went out when accused called him. However, members of the raiding team arrived in the Office and apprehended the accused. The case put forth on behalf of accused appears to be more probable in view of the fact that after complainant purchased a plot way back in the year 1982, he was since then behind the Officer of Land Records Department for effecting mutation of the said plot in his name and had in fact applied for the same. However, since complainant did not make necessary payment for measurement of land, the application was not processed and accordingly on the date of incident, though complainant visited the office of the accused for paying necessary charges for measurement, he got the accused falsely implicated by lodging report (Exh. 17) on the same day.
14. The case of the accused is further found substantiated when in cross-examination complainant has admitted that after effecting sale transaction way back in the year 1982, he had applied for mutation two-three years thereafter. The complainant has denied that on his making application for mutation, he was informed by the Office of Land Records that as it was non-agricultural land, measurement of land was necessary. The complainant is not aware since when accused was transferred to the Office at Mul and has admitted that accused had informed him that he would have to deposit amount for measurement of land. The record reveals that though complainant had admitted as above, on intervention by the learned Assistant Police Prosecutor before the trial Court, complainant denied this fact.
15. Considering the fact of complainant's application being pending with the Office of Land Records since 1984-985, as can be gathered from the above-said evidence of the complainant, there appears to be much substance in the defence of the accused when it was suggested to the complainant that when application was filed as above, some other person was working in the concerned Office and that accused was not working there. Though complainant has denied the said suggestion, that does not appear to be truthful as there is nothing on record to show that since 1984-85 till the date of incident, which occurred on 21/2/1994, the accused was on the same post.
16. Even the investigation carried out in present case does not appear to be convincing for the reason that the post trap panchanama (Exh.31) though reveals that same came to be drawn on the spot in the Office of accused, complainant contrary to the said document, has stated that after the incident, he along with members of the Anti Corruption Bureau visited Rest House, Mul where all the documents came to be prepared, upon which signatures were obtained. He has stated that all the members of the raiding team along with panchas were in the Rest House for about 45 minutes. The case of the accused as set out above is found further substantiated by the complainant when he has admitted that on his entering the office of the accused, he informed that he had brought measurement charges, though he has denied that on his entering the Office of the accused, the accused had asked him whether he had deposited the measurement charges. Even otherwise, complainant appears to have substantially improved his version when he has admitted to have stated in his statement recorded by the Police that on accepting the amount, accused kept the currency notes under paper on his table. However, he is unable to state as to why these facts were not mentioned in his statement. Above omission thus creates reasonable doubt in the case of prosecution of accused accepting the amount, but in view of admission of the complainant that on his reaching the Office of accused, since he stated that he had brought the measurement charges, he might have kept the said amount below paper on the table of the accused, I find much substance in the defence of the accused when it was suggested to the complainant that he had falsely implicated the accused though the same is denied by the complainant.
17. The case of the accused, as stated above, is found to be convincing from the evidence of P.W.4 Ghanshyam, who acted as a second panch, when he has stated that on his reaching office of Anti Corruption Bureau along with P.W.2 Kailash, complainant informed him that he was interested in purchasing one piece of land, which was to be measured, for which purpose accused had demanded Rs.800/-, which he was unable to pay for which he has lodged the complaint with Anti Corruption Bureau. It thus appears that since complainant was not interested in making payment of necessary charges required for effecting measurement of land, by lodging false complaint, he has falsely implicated the accused.
18. The evidence of P.W.4 Ghanshyam is also contrary to the evidence of P.W.1 Baburao (complainant) as well as P.W.2 Kailash as the complainant and P.W.2 Kailash had specifically deposed that at the time of incident, it is only complainant, who went to the office of the accused while P.W.4 Ghanshyam has stated that along with complainant, P.W.2 Kailash also went inside the office of the accused. Similarly, there is no convincing evidence even on the aspect of proposed signal, which was directed by the Anti Corruption Bureau to be given by the complainant on accused accepting amount and evidence of complainant as well as P.W.2 Kailash is silent on this aspect as except for complainant deposing that he gave the signal by wiping his face by his handkerchief while according to P.W.4 Ghanshyam, who was present with the raiding party mainly for observing the signal, has deposed that the signal given by the complainant was by shaking handkerchief in the air.
19. Even otherwise, the case of the prosecution fails on considering evidence of P.W.5 Nazir Patel, Sanctioning Authority when in cross-examination he has stated that on the day of incident, accused was serving as a Maintenance Surveyor and as such, was not competent to record name of owner in the official record as such powers were vested with the Officer of the rank of Assistant, D.I.L.R. or Officer above his rank and not the Maintenance Surveyor. He has admitted that necessary fee was required to be deposited for taking measurement of land. In that view of the matter also, there is no substance in the case of the prosecution of accused demanding bribe, as alleged.
21. In the result, the criminal appeal is allowed. The impugned judgment and order dated 10/12.8.2004 passed by the Special Judge, Chandrapur in Special Case No.13/1994 is quashed and set aside. The appellant is acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The bail bonds of the appellant stand cancelled. The fine amount, if any paid, be returned to the appellant.