It is
settled legal position that unless the evidence of the demand is
satisfactory, the evidence obtained by laying a trap is required to be
viewed cautiously. It would be necessary for the prosecution in such
cases to prove that it was as a result of 'demand' that the money was
passed on. In this case, the evidence of the acceptance of the money by
itself, is not sufficient to raise the inference about there having had a
previous demand of illegal gratification.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.346 OF 2005
Shri Balkrishna Bhau Desai
Versus
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
DATED : 23rd APRIL, 2015
The appellant, who was, at the material time, working as a
Sectional Engineer in the Public Works Department, Indapur, Sub
Division, Pune, was prosecuted on the allegation of having committed
offences punishable under section 7 and Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act. The learned
Special Judge, Baramati, after holding a trial, found the appellant
guilty of the aforesaid offences and sentenced him to suffer Rigorous
Imprisonment for one year and to pay a fine of Rs.2,000/ on each
count, in default to suffer Simple Imprisonment for six months. Being
aggrieved by the Judgment of conviction as delivered by the learned
Special Judge, Baramati and the sentences imposed by him, the
appellant has approached this Court by filing the present Appeal.
The prosecution case, as put forth before the trial Court, in
brief, may be stated thus :
One Bharat Gulabrao RajeBhosale (PW 1), a Government
Contractor, was given a contract in respect of the construction of a
road. The estimated cost of the work was Rs.24,00,000/. Raje
Bhosale had paid a security deposit of Rs.48,000/ in the office of the
Executive Engineer. RajeBhosale commenced the work in the month
of February 1997 and was receiving payments from the PWD from time
to time, and in a phasewise manner. In the month of March 1997,
RajeBhosale received a payment of Rs.5,00,000/ under the first bill.
In the month of April 1997, the appellant and the Deputy Engineer
one Rajole – had demanded an amount of Rs.1,00,000/ from Raje
Bhosale by way of bribe. As RajeBhosale did not pay that amount to
them, they started creating difficulties for RajeBhosale. Rajole stopped
the supply of asphalt, and got the work delayed. RajeBhosale had to
meet the Executive Engineer, and complaint about Rajole and Desai
(appellant). It is only thereafter, that RajeBhosale could carry out
further work. Again, when the next bill was collected, Rajole and the
appellant again demanded a bribe of Rs.1,00,000/ from RajeBhosale
and threatened that if he would not pay the amount, they would stop
the asphalt supply. RajeBhosale completed the work by May 1998,
and sent a letter to the Executive Engineer informing it. RajeBhosale
has requested to pay his final bill. He met the Executive Engineer Shri
Ashtapure, who, after inspection of the work, directed Rajole and the
appellant to submit the final bill. The appellant prepared final bill, but
it was incomplete. When RajeBhosale requested the appellant to
prepare a final bill, he told RajeBhosale that RajeBhosale would have
to pay 2% of the whole bill (i.e. Rs.24,00,000/) to the appellant and
another 2% of the whole bill to Rajole. (i.e.total Rs.84,000/) Raje
Bhosale paid Rs.20,000/ to the appellant immediately. Appellant then
prepared a bill for Rs.3,50,000/, though actually the bill of Raje
Bhosale was for more than Rs.5,50,000/. RajeBhosale then again
met the Executive Engineer Shri Ashtapure, who asked Deputy
Engineer Salokhe (who had come in place of Deputy Engineer Rajole)
to prepare and submit final bill of Rs.2,00,000/. Thereafter, there was
discussion between the appellant and RajeBhosale and the appellant
asked RajeBhosale to pay an amount of Rs.70,000/, instead of
Rs.84,000/ as previously demanded.
On 10th July 1998 at about 9.00 a.m to 9.30 a.m, Raje
Bhosale made a telephone call to the appellant at his residence and told
him that he would be coming to the house of the appellant between
5.00 p.m to 6.00 p.m. The appellant then said that RajeBhosale
should give Rs.50,000/ to him, when RajeBhosale told him that on
that day, he would give about Rs.15,000/ to Rs.20,000/ and that, the
remaining he would give after he would get the payment of the bill.
The appellant agreed to this.
RajeBhosale then went to the office of the Anti Corruption
Bureau, Pune at about 11.00 a.m to 12 noon. He had taken an amount
of Rs.15,000/ with him. He met Satish Ahire (PW 4), Inspector in
that department. About eight days before 10 th July 1998, RajeBhosale
had met Shri Mushrif, Superintendent of Police, and had apprised him
of the illegal demands by the appellant. On 10 th July 1998, the
complaint of RajeBhosale was recorded. At about 2.00 pm to 2.30 pm,
two panchas – Ramchandra Jadhav (PW 3) and Santram Kamble –
were called in the office of ACB. Inspector read out the complaint
lodged by RajeBhosale to the panchas. Thereafter, a trap was laid.
Anthracin powder was applied to the currency notes given by Raje
Bhosale and appropriate instructions were given to him, and to the
panchas. As per the trap laid, the police party, the panchas and Raje
Bhosale went to Indapur and ultimately, when the appellant accepted
the tainted amount of Rs.15,000/ in his office, he was apprehended.
In order to establish its case, the prosecution examined
four witnesses during the trial. The first witness, as aforesaid, is Bharat
RajeBhosale, the First Informant. The second witness Rashid Gafur
Sayyed, Deputy Secretary (PWD) is the one who had signed the
sanction order issued under section 19 of the Prevention of Corruption
Act. (hereinafter 'P
.C.Act' for brevity). The third witness Ramchandra
Jadhav – it may be recalled – is a panch in respect of the pretrap and
posttrap panchnama, and the fourth witness Satish Ahire, Inspector of
Police, is the trap laying officer.
The defence of the appellant was that he had been falsely
4
implicated. According to him, he had never demanded any illegal
gratification from RajeBhosale. The appellant examined Rajole, who,
as aforesaid, was the Deputy Engineer at the material time, as a
defence witness. The defence of the appellant is that there were a
number of faults in the work carried out by RajeBhosale and that,
RajeBhosale had, therefore, been warned by issuing a letter to him;
and that, RajeBhosale therefore, had a grudge against the appellant.
I have heard Mr.Shekhar Ingawale, learned counsel for the
appellant. I have heard Mr.Deepak Thakre, learned APP for the State. I
have gone through the record of the case, and more particularly, the
entire evidence adduced during the trial and the impugned judgment.
6
It is contended by the learned counsel for the appellant
that the judgment and order of conviction, as recorded by the learned
Special Judge, is not proper or legal. According to him, the charge, as
was framed, was not proper. It is also submitted that the sanction to
prosecute the appellant, as contemplated under section 19 of the P
.C.
Act, was also invalid. According to him, these factors have caused
serious prejudice to the appellant, and the appellant was therefore,
entitled to be acquitted. It is also submitted that even on an
appreciation of the evidence, as was adduced during the trial, the
finding of conviction could not have been arrived at. He submitted
that the trap was laid without any verification of the alleged demand,
and that, there was no satisfactory evidence of the demand. He
submitted that even as regards the alleged acceptance of bribe, there
was no satisfactory evidence. He contended that there were a number
of discrepancies in the prosecution evidence, creating a serious doubt
about the truth of the prosecution version, the benefit of which should
have been given to the appellant, and he should have been acquitted.
I have carefully considered the matter.
8 7 So far as the charge is concerned, indeed the same does
not appear to be properly or appropriately framed. The learned Judge
has framed a composite charge with respect to the offence punishable
under section 7 and section 13 of the P
.C. Act which was not proper.
There is substance in the contention advanced by the learned counsel
for the appellant that the ingredients of an offence punishable under
section 7 of the P .C.Act, are not found in the charge that was framed
against the appellant. Though this appears to be so, I am unable to
hold that the error in framing of charge, or rather the lack of precision
and accuracy while framing it, as has happened in this case, would
vitiate the finding of conviction. It is not possible to hold that the
appellant was misled by the framing of the charge, in any manner, or
was not able to defend himself properly by that reason. In any case, it
is not possible to hold that because of the propriety or lack of precision
in framing of a charge, a failure of justice has been occasioned. I am therefore, not inclined to give importance to this aspect.
As regards sanction, the learned counsel for the appellant
submitted that the sanction in this case was granted by PW 2 Rasheed
Sayeed, who was, at the material time, working as Under Secretary in
the Public Works Department, (PWD) Secretariat. It is contended that
he was not competent to accord the sanction required under section 19
of the P .C.Act, and that it was only the concerned Minister who could
have granted such sanction. My attention was drawn to the evidence
of this witness in which he agreed that in case of a public servant whose
basic salary is Rs.10,650/, proposal to grant sanction for prosecution
would be required to be sent to the Dy. Chief Minister. That the applicant
belongs to that category was not – and is not – in dispute. Rasheed
Sayeed has stated that under Rule 13 of the Rules of Business framed by
the Government, the powers to accord a sanction were delegated to him.
This is obviously incorrect as the power granted to the Under
Secretaries is only to authenticate the documents on behalf of the
Government. Therefore, if this witness had granted the sanction, the
same would have been bad in law. However, though this witness does
say that it is he who has granted the sanction, on the face of the
evidence and the sanction order, this claim of the witness is absolutely
incorrect. It is apparent from the sanction order that he has merely
authenticated the same in accordance with the Rules of Business, and
that the order has actually been passed by and in the name of Governor
of Maharashtra in whom the executive power of the State is vested by
virtue of Article 154 of the Constitution. The evidence of this witness
that '
he perused the documents submitted to him, applied his mind and
took a decision whether sanction should be granted or not
', is not only
incorrect, but is ridiculous. The sanction order was produced before
the Court during the trial, and no challenge to the validity thereof was
raised, except that 'the Under Secretary was not entitled to accord the
sanction for prosecution'. That the Under Secretary was not competent,
has to be accepted, but the claim of the Under Secretary that 'he had
granted the sanction', cannot be accepted. Since actually the sanction
appears to have been granted by the government, no importance can be
given to the challenge to the validity of the sanction which is based
purely on a wrong, erroneous and rather ridiculous statement made by
PW No.2 Rasheed Sayed. Since there is nothing to show that the
sanction had not been granted in accordance with the Rules of
Business, no fault can be found therewith. As such, this contention
which was rightly not stretched much – does not assist the appellant,
in any manner.
In view of the contention that the alleged demand of
illegal gratification was not proved at all, it would be necessary to
examine the evidence of RajeBhosale in that regard, carefully. It is
because except RajeBhosale, there is no other witness who can state
about any such demand.
11
According to RajeBhosale, due to the harassment caused
to the appellant and Rajole, and in order that they should not create
any difficulties for him in completing the work, he had paid an amount
of Rs.20,000/ to the appellant, already. After completion of further
work, and when RajeBhosale was to get a further amount, the
appellant wanted further illegal gratification from him, and had
initially demanded an amount of Rs.84,000/ from RajeBhosale. It is
in this background that on 10th July 1998, at about 9.00 a.m to 9.30
a.m, RajeBhosale made a telephone call to the appellant at his
residence, and told him that he would be coming to the house of the
appellant between 5.00 p.m to 6.00 p.m for giving money to him. The
appellant, according to RajeBhosale, said that he should be given
Rs.50,000/, but RajeBhosale told him that, on that day, he would give
about Rs.15,000/ to Rs.20,000/ only, and that the remaining amount
would be given after getting the payment of the bill. According to
RajeBhosale, the appellant agreed to accept the said amount of
Rs.15,000/ to Rs.20,000/.
12
RajeBhosale then went to the office of the Anti Corruption
Bureau (ACB) at Pune at about 11 to 12 noon on the same day.
Interestingly, he had already taken an amount of Rs.15,000/ with him.
He then made his complaint to the Inspector in the office of the ACB.
After the complaint was lodged at about 2.00 to 2.30 p.m, the
Investigating Officer Ahire immediately laid a trap without attempting
to make any verification of the alleged demand. RajeBhosale was even
not needed to be told about bringing the amount which would be
offered to the appellant as bribe money, as RajeBhosale had already
carried that amount with him. This is rather remarkable inasmuch as,
ordinarily, the complainant acts after instructions, in that regard, are
given to him by the Investigating Agency. Normally, a person does not
already carry cash with him which is to be used for trapping the corrupt
public servant. In this context, it is revealed in the evidence of Raje
Bhosale that he had already met the Superintendent of Police, about a
week prior to 10th July 1992. RajeBhosale did not mention this in the
complaint. Anyway, not much turns on this, except that it should be
clearly understood that RajeBhosale had already carried the amount
which was to be used for trapping the appellant with him when he
went to the ACB office for lodging the complaint. Indeed, it appears
that there was no verification of the statement allegedly made by the
appellant, and the Investigating Officer did not make any attempt to do
so.
There is a discrepancy as to what was the denomination of
the currency notes that comprise the amount of Rs.15,000/.
According to RajeBhosale, the amount consisted of 150 currency notes
of Rs.100 denomination. However, according to the Investigating
Officer and the panch – and as per the prosecution case, the amount
consisted of 100 currency notes of Rs.100, and another 100 of Rs.50
denomination. This discrepancy needed to be taken into consideration
along with other weaknesses in the prosecution case, but it did not
impress the learned trial Judge who termed it as a minor discrepancy.
14
Even if this discrepancy would not be crucial or fatal, there
is a serious infirmity in the prosecution case which could not have been
lightly ignored. Now, according to RajeBhosale, he was given a tape
recorder by the Investigating Officer for recording the conversation that
would take place between him and the appellant. RajeBhosale
categorically states that one small taperecorder was given to him, and
he was instructed to record the conversation between him. This was
quite natural, as there had been no prior verification of the alleged
demand. Recording of the conversation would support the theory of
the initial demand, or atleast the demand just before the acceptance. It
would corroborate the testimony of RajeBhosale in that regard.
Interestingly, however, it is not the prosecution case that any tape
recorder was given to RajeBhosale. The Investigating Officer Ahire
(PW 4) not only did not speak about any taperecorder being given to
RajeBhosale for recording the conversation between him and the
appellant, but categorically denied that any taperecorder had been
given to RajeBhosale by him. Interestingly, he did admit that in this
case, he was aware of the possibility and desirability of having the
conversation between the appellant and RajeBhosale, recorded. The
panch Ramchandra Jadhav (PW 3) also does not speak about any tape
recorder being given to RajeBhosale for recording the conversation
between him and the appellant.
I have carefully considered this aspect.
16 It is not possible to hold that RajeBhosale had made an
accidental slip while speaking about he having been given a tape
recorder. It is because the story of his having been given a tape
recorder, is not found only on a bare assertion to that effect, but Raje
Bhosale has given the details of further happenings, categorically
stating that he did actually record the conversation. According to Raje
Bhosale, after the appellant was trapped, the Investigating Officer took
the taperecorder from RajeBhosale. He has said this in his
examinationinchief itself. In the crossexamination, he said that after
the accused was trapped, he had given the taperecorder to the
Investigating Officer, and that, the cassette in the taperecorder was
played in the presence of panchas after the trap. Thus, RajeBhosale is
categorical and clear about the fact of a taperecorder having been
given to him, the conversation between him and the appellant being
recorded, the same having been played over to the Investigating Officer
and the panchas after the trap, and of the cassette being handed over
to the Investigating Officer.
17
The question that arises is why then the prosecution does
not wish to rely on the conversation that had taken place between Raje
Bhosale and the appellant? The question that arises is why the
Investigating Officer is claiming that no taperecorder had been
provided to RajeBhosale (while admitting that it could be provided),
and no conversation between him and the appellant had been
recorded? The question that arises is who is right – RajeBhosale or
the Investigating Officer – Ahire (PW 4)? It is a matter of common
sense that RajeBhosale's version in this regard, cannot be discarded at
all. If there had been no taperecorder, RajeBhosale would have had
no reason to mention about such a taperecorder. Moreover, ordinarily,
the Investigating Officer was expected to have the conversation
between RajeBhosale and the appellant recorded when such recording
facility was available, and when there had been no prior verification of
the alleged demand.
In my opinion, this is a serious discrepancy in the
18
prosecution case. This shows that the prosecution did not want to
produce the record of the conversation between RajeBhosale and the
appellant. Needless to say that in such a situation, the inference that
the recorded conversation, if produced, would not have supported the
prosecution case, or the account of the happenings as given by the de
facto complainant RajeBhosale, can legitimately be drawn.
This aspect also did not impress the learned Special Judge.
19
He did notice and accept that there was a clear discrepancy in that
regard. He noted the submission of the appellant that the prosecution
had deliberately suppressed the audio cassette with a malafide
intention. He also noted that the evidence of RajeBhosale and
other in this regard. However, he did not feel this important at all. He
observed :
“It is very pertinent to note that there is
Investigating Officer Ahire (PW 4) contradicted the evidence of each
nothing on record to show that any conversation was
recorded in the said cassette. It is quite possible that due to
some mechanical defect, or if the parties are talking in a
considerable low voice, a conversation is not recorded. It is a
matter of demand of bribe and its payment and can one
expect that the accused and the complainant would be
20
speaking loudly so that the neighbors should hear the same”
It is not possible to accept the reasoning of the learned
trial Judge. He forgot that it was not the case of the prosecution 'that
the record could not be produced because the conversation could not
be recorded', or that 'the conversation being in a low voice, was not
audible'. It may be recalled that the Investigating Officer had
categorically denied that any taperecorder was used, and any
conversation between the appellant and RajeBhosale was tape
recorded. If the learned Judge could observe that due to mechanical
defect, 'sometimes a conversation would not be recorded', or 'if the parties
would be talking in a low voice, conversation would not be audible', why
could the Investigating Officer not say that 'the conversation had not
been recorded due to some mechanical defect', or 'as the parties were
talking in a low voice, it was not audible', as the case may be. This
question, however, did not bother the learned Special Judge. The
significance of the attempt by the Investigating Officer of suppressing
that taperecorder was provided, and conversation had been recorded,
was not grasped by the learned Special Judge who has resorted to a
somewhat perverse reasoning. In the pursuit of this reasoning, he
forgot the evidence of RajeBhosale who claimed that the conversation
had not only been recorded, but was also heard by the Investigating
Officer and the panchas after the appellant had been trapped. Ignoring
this evidence, the learned Judge considered two possibilities without
any basis, and without anybody even suggesting it viz. that the
conversation might not have been recorded due to some mechanical
defect, or that it would not be audible because of it having taken place
in a low voice. He, however, ignored a third possibility i.e. of the
Investigating Officer making a false claim of not recording a conversation
because the conversation did not support the version of RajeBhosale, or
the theory of the appellant having made a demand of bribe. Why and
how this possibility was ruled out, is impossible to understand. The
only reason behind ruling out this possibility seems to be that this
possibility is not consistent with the guilt of the accused.
21
Even if the discrepancy with respect to the denomination
of the counterfeit currency notes to which Anthracin powder was
applied, and which was used for trapping the appellant, was not felt
material, the discrepancy about whether recording of the conversation
between the appellant and RajeBhosale had been done, the evidence
that it had been done and a feeble attempt to show that it was not done
at all, just to avoid the production of the record, affect the prosecution
case severely.
22
There are also some other discrepancies in the prosecution
case. According to RajeBhosale, on going to Indapur, he and two
panchas first were asked to go to the house of the appellant by the
Investigating Officer. That, they went to the house of the appellant
who was not present there, and his wife who was there, told that the
appellant was in his office. RajeBhosale has then corrected this
version and said that actually they did not go to the residence of the
accused, but had sent a peon to the residence of the accused, and that
the peon brought the information that the accused was in the office.
The version of the panch Ramchandra Jadhav (PW 3) is however,
different. According to him, RajeBhosale and he had indeed gone to
the house of appellant, and that somebody from his house told that the
appellant was in the office. Thereafter, the matter was reported by
RajeBhosale and Jadhav to the I.O Ahire (PW 4), who then said that
they should go to the office of the appellant. According to Ahire also,
first RajeBhosale and the panch went to the residential quarters of the
appellant, and since he was not there, and was said to be in the office,
they went to the office. This discrepancy is indeed not very significant,
but what needs to be kept in mind is that though according to Raje
Bhosale, the place of meeting was to be the residence of the appellant,
actually the appellant did not wait there for RajeBhosale.
23
Investigating Officer Ahire (PW 4) had asked Raje
Bhosale to keep the panch witness with him, and initiate the
conversation with the appellant in the presence of the panch. However,
RajeBhosale himself actually asked the panch to wait outside only.
Therefore, what exactly transpired when RajeBhosale met the
appellant in his office, is not at all clear.
24
The evidence indicates that there had been some
objections about the work carried out by RajeBhosale. Rajole (DW 1)
stated in his evidence that RajeBhosale was slow in his work that there
were some shortcomings in the work carried out by him. In his
evidence, RajeBhosale had made an attempt to suppress the fact he
had received a warning for the shortcomings.
25
Undoubtedly, there is evidence showing that the tainted
amount was handled by the appellant inasmuch as the tips of the
fingers of the appellant were said to be showing blue shining when
seen under the ultraviolet rays. This would indicate that the appellant
had handled the tainted amount. However, when the demand of illegal
gratification itself has not been satisfactorily proved, and when the
conversation between the appellant and RajeBhosale just before the
tainted amount was allegedly passed over to the appellant, has been
suppressed, it would not be possible to hold the appellant guilty only
on the basis of evidence that he had handled the tainted amount. It is
settled legal position that unless the evidence of the demand is
satisfactory, the evidence obtained by laying a trap is required to be
viewed cautiously. It would be necessary for the prosecution in such
cases to prove that it was as a result of 'demand' that the money was
passed on. In this case, the evidence of the acceptance of the money by
itself, is not sufficient to raise the inference about there having had a
previous demand of illegal gratification.
26
After considering the entire evidence adduced before the
trial court, I am of the opinion that this was a case where the
prosecution had failed to prove the charges against the appellant. In
my opinion, the following factors :
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(i)
APEAL-346-05(J).sxw
That the complainant while going to the
office of the ACB for lodging the complaint, had
already carried the amount of bribe which was to be
used for trapping the appellant;
(ii)
That, the de facto complainant, had before
going to the office of the ACB met the Superintendent
ig
of Police, but what transpired during that meeting,
was not disclosed by RajeBhosale. Instead, he
attempted to show as if the whole matter started on
10th July 1998 i.e. the day on which he went to the ACB
office;
(iii)
That, the trap was laid without
verification, or even making an attempt to verify the
alleged demand of bribe;
(iv)
That, according to RajeBhosale, a tape
recorder was provided to him and the conversation
between him and the appellant was recorded, and that
the recorded conversation was after the trap played
over by the Investigating officer, the panchas and Raje
Bhosale. The Investigating Officer, however,
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APEAL-346-05(J).sxw
categorically denies that any taperecorder was used,
or any conversation had been recorded. Interestingly,
he does not explain why it was not recorded, though
such a facility was available, and though, he, on his
own saying, was aware of the fact that usually in such
cases, the conversation is recorded;
There is a discrepancy in the
(v)
Rs.15,000/,
ig
denomination of the notes consisting the amount of
collectively, (and the factor regarding the discrepancy about recording of
the conversation singly and by itself), are sufficient to create a
reasonable doubt about the truth of the prosecution version.
27
The appreciation of evidence as done by the learned
Special Judge, and the conclusion arrived at by him, is not in
accordance with law. This was a case where the appellant ought to
have been acquitted.
28
tilak
Appeal is allowed.
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The impugned judgment and order is set aside.
30 The appellant stands acquitted.
31 His bail bonds are discharged.
32 Fine, if paid, be refunded to him.
ig
29
APEAL-346-05(J).sxw
(ABHAY M. THIPSAY, J)
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