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Motiram Jaisingh Pawar Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 20/A of 1982
Judge
Reported in1985(1)BomCR669
ActsIndian Penal Code (IPC), 1860 - Sections 161; Prevention of Corruption Act, 1947 - Sections 4, 5(1) and 5(2)
AppellantMotiram Jaisingh Pawar
RespondentState of Maharashtra
Appellant AdvocateS.C. Bora, Adv.
Respondent AdvocateS.G. Deshmukh, A.P.P.
DispositionAppeal allowed
Excerpt:
.....part of version given by complainant should be accepted - complainant's version that he met accused persons on 24.12.1980 which he reiterated with positive force has been found to be false - appellant-accused no. 1 was on casual leave on concerned day - it is reasonable to assume that complainant with some grudge in his mind probably for having received excessive electricity bill has concocted imaginary story of his having met and negotiated deal with two accused - appeal allowed. - - apparently, the complainant was not satisfied with his answer. with the assistance of the counsel for both parties, i have gone though the entire record of the prosecution trial as well as the impugned judgment. the entire trend of the examination-in-chief as well as the cross-examination shows..........was agreed upon by the complainant to be paid to both the accused, in consideration for which the accused persons agreed to reduce the bill to rs. 138/-. it is further the case of the prosecution that the complainant had expressed that he would be in a position to pay the amount of rs. 400/- just after the village fair was over and, at any rate, within 7 or 8 days.4. thereafter nothing seems to have transpired till 30th december, 1980, when an application came to be filed on behalf of the complainant (exh. 9) for extension of the stipulated time to pay the bill as originally issued. the time was extended upto 1-1-1981. on the record of the investigation papers there is one more application of the complaint at exh. 10, but the same is undated. the said application relates to his prayer.....
Judgment:

S.W. Puranik, J.

1. The appellant stands convicted for the offence under sections 161 of the Indian Penal Code and 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, and has been sentenced to suffer rigorous imprisonment for one year and pay a fine of Rs. 100/- on each count, the substantive sentence having been directed to run concurrently. The appellant Motiram was tried with another Waman before the trial Court for the above offences with the aid of section 34 of the Indian Penal Code. The brief facts leading to the present appeal may be narrated as under.

2. The appellant-original accused No. 1 and the acquitted accused Waman are both serving in the Divisional Office of the Maharashtra State Electricity Board (for shot hereinafter referred to as 'M.S.E.B.') at Jintoor, District Parbhani. They were working in the Bill Section of the said Office. The complainant-Satwarao runs a flour mill at village Chamani, which comes within the jurisdiction of Jintoor sub-Division of the M.S.E.B. The said flour mill run on electricity and he has regular electric supply from the M.S.E.B. with a separate electric supply meter at the flour mill.

3. According to the prosecution, the said Satwaro used to pay his electric bills regularly. The bills which he used to receive were of the amount of Rs. 100 to Rs. 200 on an average in the month of December 1980, to be precise on 15-12-1980, the complainant-Satwarao received a bill for Rs. 938/- vide Exh. 27. The complainant felt aggrieved by such an excessive amount and he was sure that there has been some mistake, in the bill forwarded to him. According to the prosecution, the complainant-Satwarao went to the office of the M.S.E.B. at Jintoor on 24-12-1980 and met the Assistant Engineer Shri Somani-P.W. 5 and narrated his grievance. The said Assistant Engineer, however, directed him to deposit the entire amount and also assured him that the bill would be got verified from the Meter Section and the ledger book. Apparently, the complainant was not satisfied with his answer. On the same day, he went to the bill section and met both the accused, i.e. appellant-Motiram and the acquitted accused Waman. According to him he had explained his grievance to these two persons, but as both of them were busy they had asked him to come on the next day. It is further the case of the prosecution that the complainant went to the office on the next day and again requested the two accused for correction of the bill issued to him and for reduction of the amount. According to the complainant both the accused assured that they would be in a position to reduce the bill to an amount of Rs. 138/- only if they were paid an amount of Rs. 600/-. There was a bargain between the complainant on the one hand and the two accused on the other and ultimately, an amount of Rs. 400/- was agreed upon by the complainant to be paid to both the accused, in consideration for which the accused persons agreed to reduce the bill to Rs. 138/-. It is further the case of the prosecution that the complainant had expressed that he would be in a position to pay the amount of Rs. 400/- just after the village fair was over and, at any rate, within 7 or 8 days.

4. Thereafter nothing seems to have transpired till 30th December, 1980, when an application came to be filed on behalf of the complainant (Exh. 9) for extension of the stipulated time to pay the bill as originally issued. The time was extended upto 1-1-1981. On the record of the investigation papers there is one more application of the complaint at Exh. 10, but the same is undated. The said application relates to his prayer for verification of the bill. Article-3 on record is a fresh bill for Rs. 938/- issued with a due date of payment as 1-1-1981.

5. Now coming to the main part of the prosecution case. It appears that in spite of having agreed to pay an illegal gratification of Rs. 400/- to both the accused, the complainant desired to trap the two accused for demanding and accepting bribe. He, therefore, approached the Police Inspector-A.C.B, on 6-1-1981. He narrated his complaint to the Police Inspector-Shastri-P.W. 7. The Police Inspector, however, called him on the next day without recording his complaint. On 7-1-1981 the complainant again approached the office of the Police Inspector-Shastri and in the presence of two panchas, one of whom is Bodhane-P.W. 4, he narrated the complaint in detail. The same was reduced to writing vide Exh. 7.

6. The investigating Officer-Shastri thereafter carried out the usual demonstration panchanama. The four currency notes of Rs. 100/- each produced by the complainant were taken possession. Phenolphthalein powder was applied to them. They were again handed over to the complainant, and asked him to keep the same in his banian pocket. He was directed not to touch those notes except when the amount is demanded by the accused and only for payment to the accused. The Panchas Bodhana P.W. 4 and Munawarkhan were directed to accompany the complainant at the time of the trap and to watch, observe and hear whatever transpires between the complainant and the accused persons. The demonstration panchanama No. 1 is at Exh. 17.

7. The raiding party accompanied by the complainant and the two panchas proceeded by Jeep to Jintoor and reached near the M.S.E.B. Office in the afternoon of 7-1-1981. According to the prosecution, the complaint-Satwarao accompanied by Bodhane-P.W. 4 entered the office to meet the accused persons, where as the raiding party, stayed outside the office awaiting the agreed signal. According tot the complainant, he reached inside the office but could meet only the accused No. 1 the present appellant. The other accused was not present. He was asked by the appellant as to whether he has brought the agreed amount to which the complainant answered in the affirmative. The complainant himself offered to pay the amount in the office room itself, but is alleged that the appellant told the complainant to pay the amount in the Sahakhari Hotel, just opposite the office building. The complainant was asked to go to that hotel and wait for the appellant. The complainant also asked the accused in the office room itself whether the reduced bill is ready and the appellant is reported to have answered that as the bill has to be prepared by the second accused-Waman, who is not available, the same will be prepared after his arrival. However, the amount should be paid on that day only.

8. The complainant thereafter went to the hotel opposite the office. Shortly, thereafter the appellant, the original accused No. 1, came inside the hotel. They sat around the table. The complainant asked for two cups of tea. The panch Bodhane was sitting on the adjoining table within a hearing distance. According to the prosecution the complainant was asked by the accused-appellant as to whether the amount has been brought, and the complainant answered in the affirmative. The complainant against asked as to whether the reduced bill is ready, to which the appellant answered that the same would be prepared on the return of original accused No. 2. Upon this the complainant took out the currency notes from his banian pocket and handed over the same to the appellant. The appellant received the said amount and placed it in the front side pocket of his full pant. The complainant and the accused-appellant were served tea and thereafter they went outside the hotel for pan. At that stage the complainant gave the agreed signal and the raiding party rushed upon the appellant, his hand was caught, a search was taken and the currency notes were taken out from his full pant pocket.

9. The test of phenolphthalein powder and sodium bicarbonate solution were carried out and a detailed panchnama of the trap, which is panchnama No. 2 at Exh. 19, was executed under the signatures of both the panchas. After the investigation was over and after securing the sanction at Exh. 48, the charge-sheet was presented. Both the accused abjured their guilt and claimed to be tried. At the trial, the prosecution examined the complainant Satwarao as P.W. 1, Vasant P.W. 2 who drew the plot map at Exh. 13, Pandharinath P.W. 3 who was alleged to have been present along with the complainant on the date the bargain of Rs. 400/- was settled between the complainant and the two accused, and Bodhane, one of the panchas who accompanied the complainant on the day of the trap as P.W. 4. The prosecution also examined Somani, Assistant Engineer, as P.W. 5, Shastri-Investigating Officer as P.W. 7, Sanghai an upper division clerk of M.S.E.B. as P.W. 6, and finally the Supdt. Engineer of M.S.E.B. Shri Ghan as P.W. 8. Upon recording of the evidence and after recording the statements of both the accused, the Special Judge, Parbhani, passed the impugned judgment on 26-2-1982. By this impugned judgment, the learned Special Judge recorded a finding of acquittal in favour of the accused No. 2, while recording a finding of conviction against the present appellant accused No. 1. It is this order which is impugned by the appellant in this appeal.

10. Shri S.C. Bora, Advocate, appeared for the appellant, while the respondent-State is represented by Shri S.G. Desmukh, A.P.P. With the assistance of the Counsel for both parties, I have gone though the entire record of the prosecution trial as well as the impugned judgment.

11. Shri S.C. Bora, Counsel for the appellant, contended that the conviction of the appellant is totally erroneous and unjust and cannot be sustained on the basis of the record available. He argued that the version given by the complainant is most artificial and untrustworthy and, at any rate he has changed his version from time to time. His testimony is also liable to be discarded because of the touch of falsity right from the very genesis of the incident. He also contended that mere finding of the powdered currency notes in the possession of the accused is not sufficient for conviction of the accused, unless the prosecution is able to show that the same were accepted consciously as an illegal gratification. He also argued that the trial Court had found the testimony of the complainant totally false in respect of the accused No. 2 and this witness, therefore, could not be believed without proper corroboration even for convicting the appellant-accused No. 1. Amongst other grounds, he also criticised the evidence of Pandharinath-P.W. 3, who is alleged to have been present with the complaint at the time the deal was struck between the complainant and the accused persons. He also contended that there are various discrepancies in the versions given by the complainant-P.W. 1 and the raiding party panch Bodhane-P.W. 4. It was his submission that the judgment of conviction in respect of accused No. 1 is liable to be set aside.

12. The learned Public Prosecutor supported the impugned judgement. He led stress upon the fact that the fingers of the accused were tested in sodium bicarbonate solution and which gave a positive indication that the accused had, in fact, touched and accepted the currency notes. He also stressed emphasis on the fact that the currency notes were in the front pocket of his full pant thereby showing the conscious acceptance of the currency notes. He also led stress on the presumption under section 4 of the Prevention of Corruption Act in the facts of the present case.

13. It would be necessary to advert to some of the relevant portion from the evidence to find out whether the prosecution in this case has been able to establish the charges framed against the appellant beyond reasonable doubt. It has to be noted that, according to the complainant, who seems to be quite aware of various Calendar dates, he met P.W. 5 Somani, Assistant Engineer, on 24-12-1980, shortly after he had received the bill for Rs. 938/-. In his own deposition, he has mentioned these dates in a positive way. According to him, since he did not get any satisfactory answer from the Assistant Engineer-Somani, he approached both the accused person on the same day, i.e. on 24-12-1980. He is equally positive that both the accused persons were busy on that day and he was called to meet them again on the next day. The entire trend of the examination-in-chief as well as the cross-examination shows that he is making a positive assertion of the fact that he went and met the accused persons on the next day, which is on 25-12-1980. That was the date according to the complainant when the bargain was struck at Rs. 400/- finally. It was also the date according to the complainant that the amount was agreed to be paid shortly after the village fair was over and, at any rate, within a period of about 6 or 7 days from that date. It would, therefore, be reasonable to assume that the amount was agreed to be paid on or before 30th of December, 1980. If that be so, the complainant has not made any move from 24th to 30th either by way of going over to the office for payment or by way of making a complaint to the A.C.B. Office against the accused. It is also seen from the prosecution evidence that even though the complainant had either suppressed the fact or omitted to mention that he did go to the office of M.S.E.B. on 30th December, 1980, the applications Exhs. 9 and 10 shows that in any case he had been to the office on 30th December, 1980. This fact is confirmed by the testimony of P.W. 5-Somani, the Assistant Engineer, who proves the applications of the complainant on that date. There is no reference whatsoever in the entire prosecution case that on 30th December, 1980 the complainant tried to contract the appellant and his acquitted colleague. On the other hand, the complaint has throughout stated that after the bargain was struck on 25-12-1980, he went to that office for the first time on the date of the trap, on January 7th.

14. The testimony of Pandharinath-P.W. 3, who is alleged to have been present with the complainant on 25-12-1980 at the time of the initial bargain and demand has also been scrutinised by the learned Special Judge. It is pertinent to note that on appreciation of the evidence of the complainant as well as the P.W. 3 and P.W. 5, supported by the material on record, it is clear that the acquitted accused No. 2 was out of station during those days and that on 24-12-1980, the appellant was on casual leave an d the fact that on 25th and 26th of December, 1980, the office of the M.S.E.B. was closed due to holidays. The trial Court has rightly came to the conclusion that the complainant's narration of the initial approach to the two accused person, his negotiations and bargain with the two accused persons and the final agreement to pay Rs. 400 within seven days to get the bill reduced to Rs. 138/- are all found to be false. It is in the light of these evidence the trial Court has acquitted the accused No. 2 as he was not present at the material time. The acquittal of both accused on the charge of demand of the bribe is not challenged by the prosecution by any appeal. That acquittal is thus final.

15. The trial Court, in so far as the appellant-accused No. 1 is concerned, found that even though the charge regarding the demand of illegal gratification is not established against the appellant-accused No. 1, yet he found that there was sufficient material in the prosecution case to convict the appellant for having actually accepted the illegal gratification on the date of the trap, i.e. on 7-1-1981.

16. It is well settled that in the matter of trap cases, particularly when the initial part or the genesis of that story of demand and negotiations is found to be untrustworthy, then the entire prosecution case must fail for the simple reason that the testimony of the complainant by itself can never be accepted. Under section 165 of the Indian Penal Code, the complainant in such anti-corruption cases is the bribe given and is an accomplice to the offence of illegal gratification. His evidence, therefore, must be scrutinised with great caution and if the major part of the version given by him is found to be false, there is no reason why the remaining part of his version should be accepted. In the instant cases, the complainant's version that he met the accused persons on 24-12-1980, a version which he reiterated with positive force, has been found to be false. The appellant was certainly on casual leave on that day and was not present on that date. The acquitted accused was on tour duty outside Jintoor. On the next day, the 25th and 26th the office of the M.S.E.B. was closed on account of holidays. It is, therefore, reasonable to assume that the complainant with some grudge in his mind, probably for having received an excessive bill has concocted an imaginary story of his having met and negotiated the deal with the two accused.

17. It has also been brought on record through the evidence of P.W. 5 Somani and P.W. 6-Sanghai that the accused persons were not in a position to do any favour or disfavour to the complainant, inasmuch as the duty of issuing a bill and verifying the same was cast upon the Assistant Engineer himself. That lends further doubt to the version of the complainant that the two accused, the appellant in particular, assured to reduce the bill. I am in entire agreement with the trial Court's finding of acquittal of accused No. 2 on the ground that the initial story of the complainant that the accused demanded an illegal gratification from the complainant has been found to be false. As already pointed out above, even though no specific date was agreed for payment, the complainant himself had offered to pay the amount within seven days from the date of the bargain, yet nothing has been done on behalf of the complainant for almost a period of 14 days, it is for the first time, he approaches the A.C.B. Office on 6-1-1981.

18. Having come to this conclusion that the genesis of the trap case has fallen to the ground, we have to appreciate the evidence of the prosecution and of the complainant P.W. 1, panch. P.W. 4 and Investigating Officer P.W. 7 in particular. According to the complainant, when he lodged the complaint (Exh. 7) on 7-1-1981, the two panchas P.W. 4 Bodhane and one Munawarkhan were also present in the office of the Police Inspector, A.C.B., and it is in their presence that he narrated the complaint and which was recorded in writing at Exh. 7. According to the Police Inspector-P.W. 7, after arrival of the complainant in the office on 7-1-1981, he called for the panchas and recorded the complaint. Exh. 7, while, according to the panch-Bodhane-P-W. 4, he reached the office of the Police Inspector after Exh. 7 was already recorded and it was merely read over to him. Be it as it may, the versions of these three persons starts varying with each other from the very inception.

19. According to the complainant, on the date of the trap, he went along with panch-P.W. 4 and entered the office of the M.S.E.B at Jintoor. In the presence of the pancha, he contacted the appellant-accused No. 1, where a conversation regarding the amount having been brought took place. It is inside the office room that the complainant offered to pay Rs. 400/- to the appellant, and it is on that the appellant advised him to go to the hotel opposite the office and wait for him. This version is completely at variance from the version given by the panch P.W. 4-Bodhane. According to this witness (P.W. 4), when they reached on the day of the trap, the complainant asked him to wait outside the office and the complainant told him that he is going inside the office to call out the appellant. He, therefore waited outside the office. He does not know what transpired between the complainant and the appellant inside the office. He has neither seen them talking inside the office not has heard any conversation. He then found that the complainant came out of the office and both of them went to the hotel opposite the office.

20. There is material discrepancy between the versions of the complainant and the panch-P.W. 4, in the manner in which they were occupying the seats inside the hotel. According to the complainant, the accused-appellant was sitting opposite across the table to the complainant, while according to the panch P.W. 4, he was sitting by his side. There is also discrepancy in respect of the chair or bench occupied by these persons and their positions. We may treat these as minor discrepancies. There is also discrepancy regarding whether the tea, which was ordered, was consumed before the amount was paid to the accused or whether it was consumed after the payment was made. There is also vital discrepancy in the testimony of the complainant, P.W. 4 and P.W. 7 and that goes to the root of the case. It must be observed here that apart from the denial of the offence it is the defence of the appellant-accused that the amount was thrust into his pocket without his knowledge. It would thus be clear that in his defence, the appellant-accused has made it amply clear that he had not touched with his hand or fingers the currency notes. It that be so, it was incumbent upon the prosecution to show that the currency notes were consciously received and kept by him in his pocket. It is not a difficult proposition to establish, particularly when a senior Police Officer with panchas are conducting the trap and the complainant was instructed not to hand over the currency notes unless demanded by the accused. The panch-P.W. 4 was also directed to watch and observe as to what transpires between the complainant and the accused. In all such trap cases, in anti-corruption offences, there is great sanctity attached to the second panchanama, which gives the details of the reaction of phenolphthalein powder with sodium bicarbonate solution, and the caution to be taken in handling the powdered currency notes. It is a scientific and technical method of establishing the passing of powdered currency notes from one person to the other. It is for these reasons the prosecution is required to establish all the aspects of this technical proof with great care.

21. In the instant case what we find is otherwise. The complainant in chief has stated that the accused accepted the cash and kept it in his pocket. At a later stage he even improves to say that he accepted the cash and counted the currency notes and thereafter placed it in his pant pocket. As regards the test that was carried out, the complainant in chief says that the hands of the accused were tested first in the sodium bicarbonate solution, when the test showed affirmative. However in cross-examination, he is positive that the hands and fingers of the accused were tested only once. So is the case with the panch-P.W. 4. Both of them say that the fingers were tested before the currency notes were taken out by the accused and later on after the currency notes were taken out. But in cross-examination both of them admit that the fingers were tested only once. The Police Inspector P.W. 7 is positive that the fingers were tested before the currency notes were taken out by the accused and also subsequently. All of them were contradicted with that portion of the second panchanama. Exh. 19, which says that only once the fingers of the accused were tested with the sodium bicarbonate solution and that too after the accused had taken out the currency notes from-the pocket. There is, thus, material discrepancy which has been brought on record, coupled with the admissions of the complainant and the panch that the fingers of the accused were tested only once. This clearly is a serious lapse in the prosecution case. There is no evidence from the prosecution to show that the fingers of the accused were already smeared with the phenolphthalein powder if he has accepted the said currency notes. As stated, there is a great sanctity to be attached to the second panchanama and it is the duty of the prosecution to prove that facts stated therein with meticulous care. This lapse in the prosecution lends support to the defence of the accused that the currency notes were already in his pocket without his knowledge or were thrust in his pocket without his knowledge. There is nothing material on record to show that the accused had touched the said currency notes. This major lapse creates doubt, the benefit of which must go to the accused. There is more so because the entire genesis of the prosecution case has been found to be false and unworthy of reliance.

22. The learned Counsel for the appellant had cited several rulings, particularly the following :

: 1976CriLJ1176 ---Hari Dev Sharan v. State.

: 1979CriLJ1087 ---Suraj Mal v. State.

: 1979CriLJ936 ---Panalal Rathi v. State.

: 1975CriLJ1224 ---Sita Ram v. State.

One need not go into the details of the above cases as it is well settled that if the genesis of the story is found to be false, the entire prosecution case must fail.

23. The submission on behalf of the State made by the learned Public Prosecutor, that presumption under section 4 of the Prevention of Corruption Act is attracted in this case since the fingers of the accused were found to be smeared with phenolphthalein powder cannot be sustained for the simple reason that there is no evidence to show that initially the amount was accepted by the accused consciously. In the circumstances of the case, I have no hesitation to hold that the prosecution has failed to establish the charges beyond reasonable doubt against the appellant-accused. The accused, therefore, deserves to be acquitted.

24. In the result, therefore, the appeal is allowed. The conviction and sentence imposed upon the appellant are quashed and set aside. The appellant be set at liberty forthwith. His bail bond shall stand discharged. Fine, if paid, be refunded.


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