Skip to content


Anantray Lalji Pandya Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ1883; (1982)1GLR689
AppellantAnantray Lalji Pandya
RespondentThe State of Gujarat
Cases ReferredPanalal Damodar Rathi v. State of Maharashtra
Excerpt:
- - he was accompanied by some staff members as well as two panchas shri motubha and shri karsambhai. we may observe here that the detailed explanation which was given to the panchas about the procedure of the raid as well as about the noting down of the numbers of the currency notes etc. he has produced the partnership agreement as well as the true copies of the relevant books of accounts which are at exhs. the discrepancies are well summarized in the written arguments submitted on behalf of the accused and which are to be found at exh. the high court on appeal did not accept the prosecution case on the first two charges on the ground that it would be unsafe to hold on the bare testimony of the complainant that rs. we do not consider it safe to sustain the conviction of the appellant......d.h. shukla, j.1. the appellant, anantray lalji pandya, was the accused in special criminal case no. 1 of 1979 in the court of the learned special judge. rajkot district, rajkot. he stood charged for the offence punishable under section 161 of the penal code and section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947 and was also charged under section 456 of the penal code. xx xx xx xx2. the prosecution case, briefly stated, is as under:the accused was serving as a revenue circle inspector in the office of mamlatdar at jetpur at the relevant time (december 1978, jan. 1979) and his duties as a circle inspector, inter alia, were to prepare a rojkam alias a panchnama of the property for the purpose of issuing solvency certificate.complainant, shri vrajlal nathabhai.....
Judgment:

D.H. Shukla, J.

1. The appellant, Anantray Lalji Pandya, was the accused in Special Criminal Case No. 1 of 1979 in the Court of the learned Special Judge. Rajkot District, Rajkot. He stood charged for the offence punishable under Section 161 of the Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and was also charged under Section 456 of the Penal Code.

XX XX XX XX

2. The prosecution case, briefly stated, is as under:

The accused was serving as a Revenue Circle Inspector in the Office of Mamlatdar at Jetpur at the relevant time (December 1978, Jan. 1979) and his duties as a Circle Inspector, inter alia, were to prepare a Rojkam alias a Panchnama of the property for the purpose of issuing solvency certificate.

Complainant, Shri Vrajlal Nathabhai Ranpuria, is a Diploma-holder in Mechanical Engineering and was doing Ms business in electrical goods at Virpur and the complainant was also keeping electrical contracts of Gujarat Electricity Board. In the course of his business, he had filled in a tender for the installation of electric poles and lines at Lakhapadar Village in Amreli District. It was found that the tender of the complainant was the lowest and was approved by the Executive Engineer, Gujarat Electricity Board. However, before the contract could be finalised; the complainant was required to produce a solvency certificate. It is the further prosecution case that complainant took his father to the Office of Mamlatdar, Jetpur on 29-12-1978 for the purpose of issuance of a solvency certificate, as the property stood in the name of his father. An application was submitted to the Deputy Mamlatdar Jetpur on 29-12-1978 for issuance of a solvency certificate to the tune of Rs. 80,000/- as against the property worth Rs. 2 lacs. The same application is at Exh. 14 on the record of the case. Complainant and his father approached the Deputy Mamlatdar, one Mr. Mevada and complainant got his father signed an affidavit to be annexed with the application. The application and the affidavit were submitted to the deputy Mamlatdar and the Deputy Mamlatdar told them that they should go to his office after three days.

The complainant went and met Mr. Mevada again on 1-1-1979 but was told that as the concerned clerk was transferred, he should go back to the Mamlatdar's Office after about five days. He again went to the Mamlatdar's Office on 8-1-1979 and saw Mr. Mevada who told him that as Clerk Shri Parmar was absent from duty, he should again go on 10-1-1979. When again he went to the Mamlatdar's Office on 10-1-1979. Mr. Mevada told him to see Shri Parmar, that is, the concerned clerk, to whom the papers were sent. The complainant met Shri Parmar who took out the papers, made some endorsements thereon and forwarded those papers with the peon to the Revenue Circle Inspector, namely, the accused. Complainant then went to the office of the accused. The accused accepted the papers from the peon and receipted them. The peon then left the office of the accused. Complainant then told the accused that he was in need of a solvency certificate and further told him that he was required to have with him a solvency certificate before 15-1-1979. He requested the accused for the early issuance of the solvency certificate. The accused told him that the issuance of the solvency certificate does not rest with him alone and the accused further told him that he had many other business on hand. Complainant told the accused that if the solvency certificate was not issued to him before 15-1-1979, he was likely to lose the contract. Accused told the complainant that he was required to go to Virpur in order to prepare a Rojkam (alias Panchnama) and that it could not be issued sitting on the table. Accused asked the complainant to go to him the next day.

Next day was 11-1-1979. Complainant went to see the accused at about 12-00 in the noon. Accused told him that he was late in the day and that how could he go to Virpur at that hour. He had many other business on hand. Complainant told the accused that anyway he wanted the certificate before 15-1-1979 as otherwise he was likely to lose the contract. At this point of time', accused is stated to have told the complainant that if he wanted the accused to do the work urgently, he must do something in the matter. Complainant asked the accused to be specific and then accused told him as to how much amount he had with him. Complainant told him that he had about Rs. 30/- with him and thereupon accused demanded of him to pay that amount and the complainant com- plied and gave Rs. 30/- to the accused. The accused then told the complainant that he was giving him a Rojkam written by him and was also giving him two forms for the issuance of the solvency certificate. He directed the complainant that the two forms must be signed by his father and that the Rojkam must be signed by two respectable persons. The accused wrote, the Rojkam himself and drew two cross lines but did not enter the date. In the printed forms also, he drew two lines where father of the complainant was to put his signature. The accused asked the complainant that he should go to his office next day with those documents duly signed and filled in as directed. Accused further asked the complainant that he must do something in the matter for the accused also. Complainant asked him what was he now required to do for the accused when he had already given Rs. 30/- to him. Accused told him that he was not taking anything less than Rs. 100/-and therefore he must bring the balance amount of Rs. 70/-. Accused further told him that he would issue solvency certificate after he was paid Rs. 70/-.

The complainant then returned to Virpur with those documents. When he reached Virpur, he reflected that he had already paid Rs. 30/- and that now he should not pay to the accused the further sum of Rs. 70/-. Thereafter complainant went to Rajkot from Virpur.

On reaching Rajkot, the complainant took a rickshaw and straightway went to the office of the Anti-Corruption Bureau. It was about 9-30 P.M. A constable was present there who asked him the purpose of his visit and the complainant told him that he wanted to lodge a complaint in connection with a bribe. He was asked to sit in the office and at 9-45 p. m. Police Inspector Mr. Solanki entered the office. The complainant told him that he wanted to lodge a complaint. Mr. Solanki took the complainant to his office and the complainant narrated to him what had transpired. He wrote down his complaint and then read it over to him and obtained his signature. Mr. Solanki directed the complainant to go to the office next morning with the amount to be bribed. Complainant told Mr. Solanki that he had nowhere to go to in the city of Rajkot and that if Solanki would permit, he would pass the night in the lobby of the office. The permission was granted and the complainant passed the night in the office of the Anti-Corruption Bureau.

On the next morning that is 12-1-1979, complainant got up at about 6-30 A.M. and Mr. Solanki reached there at about 7-00 A. M. He was accompanied by some staff members as well as two Panchas Shri Motubha and Shri Karsambhai. Complainant was introduced to the Panch as and a Panchnama about the production of the currency notes, dealing with the anthracene powder etc., was made and then the complainant, Panch witnesses and members of the raiding party started for Virpur. We may observe here that the detailed explanation which was given to the Panchas about the procedure of the raid as well as about the noting down of the numbers of the currency notes etc. is not elaborately reproduced here as a part of the prosecution ease for the sake of brevity and also as in the end nothing turns upon it in the present case. This part of the prosecution case is found in detail at para 7 of the deposition of the complainant (Exh. 13).

When the raiding party reached Virpur at about 8-00 A. M. the jeep was stopped near Jalaram Kirana Store on the Ote of which father of the complainant was sitting. Complainant called his father near the jeep. His signature was obtained on the forms and thereafter the raiding party proceeded to go to Jetpur in the same jeep. After the raiding party reached Jetpur, the jeep was stationed near a cinema house situated on Dhoraji Road. The complainant and Panch Motubha started walking ahead and the other members followed. Complainant and Panch Motubha went to the first floor of the Mamlatdar's Office. At the same time, it was found that the accused had not yet reached the office and therefore both of them came down to the ground floor. At that time, Mr. Solanki and Panch Karsanbhai were waiting in the compound of tihe petrol pump. Complainant informed Mr. Solanki that accused had not yet reached the office and Mr. Solanki therefore asked them to wait. Complainant and Motubha waited for the accused near the wall of the gate. About half an hour thereafter, the accused was seen reaching the office. When accused reached near the complainant, the complainant stood up and wished him. At that time, accused was on his way leading his cycle. When accused was wished by the complainant, accused asked him whether he had got those documents signed and when the complainant answered in the affirmative the accused put his cycle in the compound and directed the complainant to follow him to his office on the first floor. Complainant and Panch Mothubha followed the accused. Accused sat on his chair and the complainant and witness occupied the seats on the other side. Mr. Solanki had handed over the form and the Rojkam to the complainant at Virpur and therefore complainant was already in possession of them. He handed over those papers to the accused. Accused examined them and again placed them on the table. Accused asked the complainant whether he had brought the money as per the instructions given to him the previous day. Accused also told complainant that he would work in the matter only thereafter complainant told him that he had brought the money and handed over the same to the accused. The accused placed the money, that is notes, in the drawer of his table and then signed in the Rojkam to indicate that signatures thereto were obtained in his presence and he also put the date therein. He also filled in the form on the reverse side and when he was about to sign it, the complainant stood up. The windows on his left hand side were open and the complainant took out his muffler and immediately Mr. Solanki and the members of the raiding party rushed there and surrounded the accused. Mr. Solanki asked the accused as to whether he had accepted the money. At that time, accused had stood up and folding his hands told the inspector something. What he told the Inspector is not recorded in the complainant's evidence. At that time, accused was trembling. Hands of the accused were seen under the rays of the ultra-violet lamp and they gave blue flourescent light. The papers, pen etc. which were lying on the table also gave such light under the rays of the ultra-violet lamp and these articles were attached. The currency notes which were lying in the drawer also reflected in the light under the rays of the ultra violet lamp and the panch witnesses were told to pick them up and a detailed panchnama was made there. The sanction of the Collector was secured and ultimately the charge-sheet against the accused was submitted in the Court of the Special Judge.

The aforesaid is the outline of the prosecution case.

3. Accused admitted that he had accepted the amount of Rs. 70/- from the complainant on 12-1-1979, but according to him that amount was not for illegal gratification but it was the amount which the complainant owed to the firm of Alankar Textile Dyeing and Printing Works for the price of three saris which he had purchased a few days before. The wife of the accused is a partner in Alankar Textile Dyeing & Printing Works and other partners are his relatives. On 11-1-1979, while the complainant was passing by the shop of the aforesaid firm, the son of the sister of the accused called him and demanded from him the remaining price of Rs. 70/- for the saris which complainant had purchased on credit, Complainant told him that he was a trader and not a beggar and asked him to refer to the accused as to whether he was worth lacs or not. The accused then taunted the complainant by saying that if he was worth lacs why should he purchase goods on credit. If he owed any amount, it would be natural for the creditor to make a demand for it. Accused introduced the person who demanded money as his nephew and further told complainant that he should bring Rs. 70/- the next day and thereafter complainant went away mumbling. At that time, the nephew of the accused, that is Balvant and one Devjibhai of the neighbouring shop and some other persons were present. In short, the accused accepted that he had received Rs. 70/- from the complainant on 12-1-1979, but his defence is that that amount was accepted by him as the balance Of debt due from the complainant to Alankar Textile Dyeing & Printing Works. Accused has examined himself and has further examined two witnesses namely Balvanlrai Gaurishanker Mehta (Exh. 46) and Devji Gopal (Exh. 51).

XX XX XX XX

The aforestated is the oral and the main documentary evidence in support of the prosecution case.

4. xx xx xx xx

5. The defence of the accused, as narrated above, is that he did accept Rs. 70/- on 12-1-1979, but that was in connection with payment of a part of the price which the complainant had to give for the saris purchased by him from Alankar Textile Dyeing & Printing Works and that it was not an illegal gratification. In order to prove his defence, the accused examined himself and further examined two more witnesses. His evidence is at Exh. 45. He has stated that his wife was a partner in Alankar Textile Deying & Printing Works along with his two nephews Balvantrai and Gaurishaakar Mehta and Jayantilal Tulsidas Purohit. Since his wife is a partner in the business, he also in his spare time sits at the shop whenever he is in Jetpur.

On 11-1-1979 at about 5-30 to 5-45, P. M., while he was sitting at the shop the complainant was passing by it. His nephew called the complainant and demanded the price of the saris purchased by the complainant a few days back. Complainant replied that he was a trader and not a beggar. He extended his hand and referred to the accused and told Balvantrai that he was worth two lacs of rupees and asked him to verify it from the accused. At that time, accused said that if the complainant was worth two lacs of rupees, he should not purchase anything on credit and if somebody claims any amount for the goods sold on credit, he is entitled to do so. Accused further said that Balvantrai was his nephew. He asked the complainant to bring the balance of Rs. 70/- the next day. Complainant agreed to do so and went away in an annoyed mood. At that time, one Devjibhai was present. He has deposed in the last part of his examination-in-chief that complainant Vrajlal gave him Rs. 70/- on 12-1-1979 and that he had accepted that amount,

The second witness for the defence is Balvantrai Mehta. He has produced the partnership agreement as well as the true copies of the relevant books of accounts which are at Exhs. 48, 49 and 50. He has stated on oath that the complainant had purchased three saris on 8-1-1979 for Rs. 105/- and towards that price, complainant had given him Rs. 35/- in cash and had sought a credit for Rs. 70/- saying that he would pay the remaining balance of Rs. 70/- the next day, but he did not.

He has corroborated the accused about what happened at 5-30 to 5-45 P. M. on 11-1-1979 near his shop and the entire contents of the corroboration need not be reproduced. We have perused the books of accounts (Exhs. 48, 49 and 50) and find a vital lacuna in the books of accounts. We agree with the learned Special Judge that there are so many unwritten pages in the ledger that it is required to be inferred that the ledger is not written regularly and in the regular course of business. There is no manner of doubt that the blank pages make interpolation very easy. We do not find any explanation why these pages in the ledger book are kept blank. But that apart, there is a major fault in the maintenance of the cash book. We find in the cash book that Rs. 105/- are debited vide Exh. 48 whereas on that day a sum of Rs. 35/- is credited, vide Exh. 48. It is surprising how Rs. 105/- are debited in the Rojmel when only Rs. 35/- were paid towards that amount. In the Udharnqndh, the same amount is debited vide Exh, 50. It is understandable that Rs. 105/- would be debited in the Udharnondh as the goods are alleged to have been sold on credit to the complainant. It is not understandable how the same amount on the same day is credited in the cash book also vide Exh. 48. The cross-examination was made on this point and Balvantrai admitted that between 30-12-1978 and 11-1-1979, there is no other entry of such a nature made in the cash books. It is difficult to believe that this is due to an oversight. The books of accounts are challenged, and in our opinion rightly, since they do not appear to have been maintained regularly and in the course of business.

Exh. 47 is the copy of the registration of the firm, whereas Exhs. 48, 49 and 50 are the extracts from the books of accounts of the firm.

The learned Special Judge has not believed the defence and we agree with him that the defence of the accused is incredible, and does not appear to be a bona fide one.

Such is the evidence produced by the accused in his defence.

6. The learned Advocate for the appellant, Mr. P. M. Thakkar, assailed the prosecution case on three grounds:

(1) It is argued that what transpired on 11-1-1979 at the office of the accused is supported on the uncorroborated testimony of the complainant himself. There is no evidence excepting the oral say of the complainant that when he went to the office of the accused on 11-1-1979, accused demanded money from him and that the complainant paid him Rs. 30/-. Accused then handed over the papers and told the complainant that he should bring the papers the next day duly signed and that the complainant should do something for the accused. Complainant told the accused that he had already paid him Rs. 30/-, and at that point of time accused told him that he does not accept less than Rupees 100/- and therefore complainant should take the balance of Rs. 70/- and pay him the next day and then only he would issue the solvency certificate. This part of the prosecution case is not supported by any evidence other than that of the complainant himself.

The learned Advocate Mr. Mehta did not contest the position that this part of the prosecution story depended for its acceptance, only on the sole testimony of the complainant. It was argued that the conduct and the evidence of the complainant must be closely scrutinised to ascertain as to whether any faith can be put in the words of the complainant. Mr. Thakkar pointed out to us several instances which would assail complainant's creditworthiness. The discrepancies are well summarized in the written arguments submitted on behalf of the accused and which are to be found at Exh. 55. We do not want to repeat all these discrepancies in our judgment, but some vital amongst them have been noted above and may be pointed out here,

(a) The complainant stated in his evidence that his tender was accepted and that the acceptance of the tender was communicated to him by a letter written by CRB. This part of this story is denied by the second prosecution witness Shri Patel, the Junior Engineer. According to Mr. Patel, the tender filled in by the complainant was not accepted at least till the date of his apposition and that it was never written to the complainant that his tender was accepted. This part of Mr. Patel's evidence proves two things. It goes to contradict the complainant and further goes to show that the complainant was in needless hurry to obtain a solvency certificate for a contract which was not yet accepted.

(b) We have noted earlier that complainant got his father signed a false affidavit, whereas it is stated in his father's affidavit that the parcels of land in question are unencumbered. It is his father who has himself stated in his evidence that those lands were encumbered to the tune of Rupees 10,000/- to Rs. 15,000/-.

(c) When it was realised that there was no letter written tp the complainant conveying an acceptance of the tender, the complainant shifted the ground and in cross-examination he stated that he had not received any letter from GEB between 22-12-1978 and 6-1-1979 but that he had gone to Amreli on 28-12-1978 and had met one Lathiabhai who had, told him that his tender was accepted and that he would be required to furnish a security deposit. The prosecution has not examined the same Lathiabhai. It was the allegation of Mr. P.M. Thakkar that complainant changed his ground after he knew from the police statement of Mr. Patel that his story about his knowledge about the acceptance of the tender from the letter of GFB as originally made out, was not likely to be believed. It must be noted that the story of Lathiabhai came to be stated for the first time before the Court.

(d) It was pointed out to us that the complainant did not inform his father about his activities for obtaining a solvency certificate right from 29th onwards. Even on 11-10-1979, he did not inform his father that he had given Rs. 30/- to the accused and that he was going to file a complaint. This would not be normal conduct of an honest man.

(e) One more fact which was pointed out by Mr. P. M. Thakkar on the creditworthiness of the complainant was that the complainant sought permission of the Police Sub-Inspector to sleep at the Anti-Corruption Bureau Office itself on the night of 11-1-1979. The complainant is a trader and is doing business for some time past and claims that his father is worth Rs. 2 lacs and therefore it is quite surprising that he was required to sleep at night at the office of the Anti-Corruption Bureau Office as he did not know anybody at Rajkot.

These are some samples of the circumstances pointed out to us by Mr. P. M. Thakkar in regard to the credibility, conduct and the status of the complainant. His submission was whether we would accept such a witness without further corroboration.

In this connection, Mr. P. M. Thakkar cited a ruling in the case of Hari Dev v. State (Delhi Administration), reported to : 1976CriLJ1176 . The facts of two cases would seldom be similar, much less identical, but when we perused the judgment we were surprised to find that the facts of that case are almost identical with the facts of the present case. There is no manner of doubt in our mind that the ratio of this reported case applies to the present one before us. The following are the facts, briefly stated, of the reported judgment:

In January, 1969, the appellant Hari Dev Sharma was working as an Upper Division Clerk in the Land and Development Office, New Delhi. Admittedly, the appellant used to deal with the applications relating to sale of properties which would be finalised only on permission being granted by the Land and Development Officer. Complainant Hari Chand had made several applications for such permission in connection with a property purchased by his wife in the year 1964, but, it seems, of no avail. The complainant met the appellant in his office, on January 29, 1969 and requested him to get his application passed. The camplainant was a tailor by profession. The appellant visited the complainant's shop on the following day and in presence of the complainant's employee Mangal Ram told the complainant that he would see his application through if the complainant paid him Rs. 100/-. The complainant having ultimately agreed to pay, the appellant made over a draft application instructing the complainant to file a typed copy of the same in his office. The appellant took Rs. 20/- from the complainant and it was agreed that the balance of Rs. 80/- would be paid after the permission was granted.... The complainant saw the appellant in his office several times in Feb. 1969 and he was assured that the matter would be finalised very soon. On the day of his last visit on February 24, the appellant told the complainant that he would see him in the latter's shop the next day for the balance of Rs. 80/-. Next day, when the appellant saw the complainant in his shop, the latter was first unwilling to pay. On being warned by the appellant that this would mean rejection of his application for permission, the complainant asked him to come the following day for the balance. In the meanwhile, on arrival of the accused, complainant's employee, Mangal Ram (P. W. 7) came out of the shop as if to fetch some Coca Cola but really to signal the arrival of the appellant. The appellant demanded money from the complainant in the presence of P. W. 3, D. C. Chaudhry assuring the complainant that the work would be done before Holi. The complainant then took out the currency notes from his pocket, retained one of them, and requested the appellant to accept Rs. 70/- saying that he had been able to collect the money by pawning his golden ring. As the appellant was counting the notes, the complainant gave a signal upon which Inspector Shukla arrived at the spot and caught hold of the appellant.

On these facts, the trial Court convicted the accused under Section 161 of the Penal Code and Section 5(1)(A) read with Section 5(2) of the Prevention of Corruption Act. The High Court on appeal did not accept the prosecution case on the first two charges on the ground that it would be unsafe to hold on the bare testimony of the complainant that Rs. 20/- had been paid to the appellant as alleged.

The High Court looked upon the complainant as a witness not to be believed unless his evidence was corroborated by other evidence. The High Court, however, accepted the other part of the prosecution case that the appellant had been Caught while accepting Rs. 70/- as bribe from the complainant. The High Court thus in appeal although disbelieved the vital part of the prosecution story, yet confirmed the order of conviction. The Supreme Court observed, 'But the main difficulty we feel in accepting the prosecution case arises out of the fact that the High Court disbelieved the part of it, which, according to the prosecution was the genesis of the case. Having disbelieved the story that the appellant had asked for a bribe of Rs. 100/- of which Rupees 20/- was paid in advance, we do not think the High Court could reasonably proceed on what was left of the prosecution to affirm the order of conviction passed by the trial Court. The prosecution case was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted. It was not the prosecution case that Rs- 70/- which was recovered from the appellant was the amount that the appellant had asked for from the complainant. This was a new case made by the High Court. Undoubtedly there are circumstances in this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case on which the other part was dependant. We do not consider it safe to sustain the conviction of the appellant.

(emphasis supplied).

Thus, it is very clear that the facts of the case in the above ruling are very similar to the present one. In the facts of the above ruling, the amount of Rs. 20/- was paid to the complainant in the presence of Mangal Ram. But that fact also does not appear to have impressed the High Court as it is found observed, 'The High Court on appeal preferred by the appellant before us did not accept the prosecution case on the first two charges on the ground that it would be unsafe to hold on the bare testimony of the complainant that Rs. 20/- had been paid to the appellant as alleged'. So far as the facts of the present case are concerned, the position is that we are required to rely upon the bare testimony of the complainant uncorroborated by any piece of evidence whatsoever. We may add that we have not found the complainant to be a reliable witness on close, perusal of his evidence and we are of the view that if the conviction of the accused is to be sustained, the prosecution should have been based upon an independent evidence other than the evidence of the complainant.

Mr. Mehta, the learned Public Prosecutor, made a valiant but futile attempt to distinguish the facts of the case of Hari Dev v. State (Delhi Administration) 1976 Cri LJ 1176 (supra). Mr. Mehta submitted that what the accused had demanded was Rs. 80/- and the complainant had paid Rupees 70/- only and it was in that light that the Supreme Court had observed that prosecution could not be permitted to put up a new case. With respect, we do not agree with Mr. Mehta that when the Supreme Court stated in its judgment that prosecution was putting up a new case, it was referring to the payment of Rs. 70/-as against the demand of Rs. 80/-, The prosecution was referring to the demand of Rs. 100/- made by the accused on an earlier occasion and it was in that light that is observed, 'but the main difficulty we feel in accepting the prosecution case arises out of the fact that the High Court disbelieved which, according to the prosecution was the genesis of the case. The demand of Rs. 80/- on the second occasion by the accused was not the genesis of the prosecution case and therefore the Supreme Court could not have intended to refer to the second part of the prosecution case when it stated that the prosecution could not be permitted to put up a new case. In our opinion, this ruling of the Supreme Court completely binds us and it is not open to us to take any other view of the matter even if we were inclined to do so. We of course cannot take a different view about the dependability of the evidence of the complainant, inasmuch as in the light of the discussion about the discrepancies in the evidence of the accused and his conduct, he can never be accepted as a gentleman of unimpeachable character.

The second important ruling to which our attention was invited was the case of Panalal Damodar Rathi v. State of Maharashtra : 1979CriLJ936 . The appellant was a police Prosecutor attached to the Court of Judicial Magistrate, Kopargaon in the district of Ahmednagar. He was tried Jointly along with the Court orderly Radhakrishana Rambhau Dalvi as second accused for offence punishable under Section 161, Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The charge against the appellant was that while working as a Police Prosecutor, he demanded illegal gratification from the complainant Parshram Govind Aglave (P. W. 1) as a motive or reward for not bringing to the notice of the Court the previous conviction of the complainant which would have exposed him to enhanced punishment. Pursuant to this demand which was for Rs. 50/- it was agreed that the complainant should pay to the first accused Rs. 25/- which, it is alleged, he accepted on 21st. November, 1969. According to the prosecution, on 18th August, 1969, the appellant advised the complainant to plead guilty so that he would be let off on a nominal sentence and on his part promised not to bring to the notice of the Court the previous conviction. He demanded Rs. 50/-as gratification. On the date of the next hearing 3rd November, 1969, the appellant again contacted the complainant and repeated his demand and the complainant promised to think it over. Subsequently, on 18th November, 1969, the complainant offered to pay Rs. 25/- and the appellant agreed to receive that amount. The complainant promised to make the payment on the 21st November, 1969. In the meanwhile, on 19th November, 1969, the complainant wrote to the Police sub-Inspector attached to the Anti-Corruption Bureau. A trap was arranged in the verandah of the Court room on 2lst November at 12-00 noon. When complainant met the appellant in the verandah of the Court room, the appellant asked him if he had brought the money and the complainant told him that he had. The second accused was standing there. Appellant asked him to pay the money to the second accused and directed the second accused to receive it. According to the complainant when the conversation took place between him and the appellant, the Pan-chas were standing at a distance of 2 to 3 feet from him. After the appellant returned to the Court the second accused took the complainant to the southern side of the verandah and asked him to pay to the Sahib. The complainant did not pay the money on the ground that his father had not arrived as he wanted to pay the amount in his presence to the appellant. Subsequently, after the Court recess the appellant came out to the verandah and asked him if he had paid the amount to the second accused. The complainant told him that he had not and solicited permission to give it to him by that time. The second accused came and the appellant told him to accept the money from the complainant. The second accused and the complainant entered the court-room and the Panchas were standing nearby when second accused asked the complainant to pay the money as agreed between the complainant and the appellant. The complainant took the notes to which powder was applied and gave those notes in hand. It is in the light of these facts that the Supreme Court observed, 'There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.' The Supreme Court further observed, 'It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the Panch witness P. W. 3. According to Panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what' was to be given to the second accused. It is significant that P. W. 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by P. W. 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and therefore the evidence of the complainant on this aspect cannot be relied on.'

(emphasis supplied)

While closing the judgment, the Supreme Court observed, 'In the circumstances, we are constrained to give the benefit of doubt. In doing so, we make it clear that we are not convinced about the innocence of the appellant. We feel on the material before us, though there is grave suspicion, the guilt of the accused has not been established beyond reasonable doubt.'

We have quoted the above observations of the Supreme Court as they in terms bring out near identical reflections in the fact-situation, of the present case.

In view of the above discussion, we must hold that the prosecution has failed to prove a vital part of its case and this failure must necessarily result into the acquittal of the accused from the charges levelled against him.

xx xx xx xx

In the result, the appeal is allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //