State of Kerala and Another v. C.P. Rao

Legal Reasoning

-1- Cri.Appeal.272.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 272 OF 2004Suresh S/o. Harichandra Hood, Age : 42 years, Occu. : Service, R/o. Kolge Niwas, Khokadpura, Aurangabad, Tq. and Dist. Aurangabad… Appellant(Orig. Accused)VersusThe State of Maharashtra… Respondent.…Mr. R. N. Dhorde, Senior Advocate for AppellantMr. A.A.A. Khan, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 08 JULY 2024PRONOUNCED ON : 16 JULY 2024JUDGMENT : 1.Getting dissatisfied by the judgment and order ofconviction recorded by learned Special Judge, Aurangabad dated13.04.2004 in Special Case No. 12 of 2000, original accused/convict has preferred instant appeal. PROSECUTION CASE IN NUTSHELL IS AS UNDER 2.Prosecution was launched against present appellant onthe premise that, while he was working as a clerk in IndustrialTraining Institute, Aurangabad, he demanded bribe of Rs.300/- forreturning documents of complainant, who had enrolled himself for -2- Cri.Appeal.272.2004ITI training course. On receipt of complaint, ACB authoritiesplanned and arranged trap, which was successful on 07.06.2000.Therefore, complaint was lodged by PW4 Dy.S.P. Sonwane andafter investigation, he was tried and charge-sheeted before SpecialJudge, Aurangabad, who conducted trial and accepted the case ofprosecution as proved, hence, convicted present appellant foroffence punishable under section 7, 13(1)(d) and 13(2) ofPrevention of Corruption Act, 1988 (P.C. Act), vide judgment andorder dated 13.04.2004. Said judgment is now taken exception to by filinginstant appeal. SUBMISSIONSOn behalf of Appellant :- 3.Learned Senior Counsel Shri R. N. Dhorde pointed outthat, there are apparently false implication. He apprised this courtabout the prosecution version in trial court and submitted that,amount accepted by appellant was towards refund of stipendavailed by complainant. He took this court through the testimonyof complainant and his cross as well as statement of shadow panchand his cross and submitted that, defence of accused has beenprobabilized. He also put this court through the statement ofaccused, which was promptly recorded after alleged raid. LearnedSenior Counsel criticizing the judgment by pointing out that, above -3- Cri.Appeal.272.2004defence has not been correctly appreciated and thereby erroneousconclusion has been reached at by learned trial Court and hence heprays to interfere by allowing the appeal. In support of above submissions, learned SeniorCounsel seeks reliance on the following rulings :- 1]State of Kerala and Another v. C.P. Rao, (2011) 6 SCC 450 2]Prabhat Kumar Gupta v. State of Jharkhand and Anr. (2014) 14 SCC 5163]C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 7794]M. Abbas v. State of Kerala, (2001) 10 SCC 1035]State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, 2009 AIR SCW 54116]B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 557]Mukhtiar Singh (since deceased) Through His LRS. v. State of Punjab, (2017) 8 SCC 136On behalf of Respondent - State :- 4.In answer to above, learned APP also took this courtthrough the testimony of complainant and shadow panch andsubmitted that, they both are consistent and lending support toeach other. That, there is specific demand of bribe to return thedocuments and therefore prompt complaint was lodged on sameday and ACB authorities laid trap was successful. That, applicantwas apprehended immediately. Defence is taken falsely -4- Cri.Appeal.272.2004afterthought. Therefore, learned APP prays to dismiss the appealfor want of merits. EVIDENCE ON RECORD IN TRIAL COURT5.PW1 Prakash is the Sanctioning Authority and it isstated that, investigation papers received from Anti CorruptionBureau (ACB) and on getting satisfied accorded sanction, which heidentified to be at Exh.9. PW2 Gajanan is the complainant, stated in his evidenceat Exh.11 that, he had taken admission to ITI for the course of‘Watch Mechanic’ and that time he had tendered originaldocuments pertaining to leaving certificate and marks memo. Heneed the said documents for enrolling his name for employmentand so he demanded said documents, at that time, accuseddemanded Rs.300/-. Therefore, he lodged complaint with ACB.Thereafter, when he went to collect the documents, at that time,accused demanded amount, it was paid by him and accusedaccepted and he gave signal. PW3 Sunil, shadow pancha, stated that, he acted as apancha and verified complaint at Exh.12. He accompanied thecomplainant to the ITI office. Complainant handed over the -5- Cri.Appeal.272.2004application to accused. Accused collected the application andhanded over the papers to complainant and thereafter accusedasked him whether he has brought money. Complainant took outthe tainted currency and accused accepted it. After which,complainant gave signal and raiding party apprehended accused. PW4 Dy.S.P. Sonwane, who carried out investigationand charge-sheeted accused.ANALYSIS6.The main thrust here in appeal is that, complainant,who had enrolled himself in ITI was a beneficiary of stipend. That,he stopped the training and thereby applied for returning thedocuments. He was called upon to return stipend awarded by him.That, accordingly, he gave Rs.300/- that day. But on falseimplication accused was arrested. Complainant PW2 Gajanan and Shadow panch PW3Sunil are crucial witnesses in this case of demand of illegalgratification.7.In substantive evidence, complainant PW2 Gajanannarrated about his admission in ITI, tendering original schoolleaving certificate and marks memo. His version is that, in July2000, he had registered himself for employment, and therefore, on -6- Cri.Appeal.272.200407.06.2000, he approached accused to return the original T.C. andmarks memo. Accused demanded Rs.300/-, but he agreed to payRs.200/-. However, accused insisted him for Rs.300/- and finallyasked complainant to come by 4:00 p.m. As complainant was notwilling to pay bribe, he approached ACB authorities and lodgedreport at Exh.12. He and shadow pancha were explained theprocedure of trap by ACB authorities and were instructed to gotogether to ITI office to pay bribe. Complainant deposed that, whenhe approached accused, he was asked whether he brought theapplication and when answered in negative, he was asked to scribethe application. Accordingly, complainant prepared application atExh.13, tendered the application to accused, who further askedhim to obtain signature of Office Superintendent. Complainantreturned back to accused and told him about talks held betweenhim and O.S.. After which, complainant collected the applicationand took out one file and even handed over the original T.C. andmarks memo. Thereafter, accused asked complainant, whether hebrought money. After which, complainant took out the taintedcurrency and held it before accused, who collected it in his righthand and kept in the pocket of his shirt. After which, hetransmitted signal. In cross examination, he has admitted that, in July, hewas getting Rs.40/- monthly as stipend. 8 days prior of the report, -7- Cri.Appeal.272.2004he admitted that, he had approached Principal Mr. Gosavi, who hadtold him that, if original documents are sought back, then he willhave to repay the stipend availed. He admitted that, 4 to 5 daysthereafter he had approached accused. He also admitted that, hewas not ready to repay the stipend amount.8.PW2 shadow panch Sunil, stated that, he hadaccompanied complainant to ITI college. They approached theaccused. Accused asked whether application has been moved andcomplainant replied in negative. Upon which, accused asked him tosubmit an application. Complainant wrote the application.According to him, they went out in search of accused, who wasseen entering the office along with few persons. That time, accusedtold complainant to hand over him the application and told him toshow it to Office Superintendent. They approached OfficeSuperintendent, who asked complainant to obtain signature ofaccused and so they came back. That time, accused collected theapplication and handed over the papers to complainant and furtherasked whether he brought money. Accused then demandedRs.300/- and took out the tainted notes by his right hand,confirmed the currency, after which, complainant rushed totransmit the signal. While under cross, shadow panch answered and -8- Cri.Appeal.272.2004admitted that, when he had first held talks with complainant atACB office, at that time, complainant had told that there wasdemand of Rs.300/- towards stipend to be returned. He admittedthat, during the recess all clerks had accompanied the accused fortea. He also admitted that, accused had made statement in his ownhandwriting that he had to recover the amount of stipend fromRokade i.e. complainant. 9.Statement of accused recorded immediately afterapprehension of accused at Exh.23. The substance of statement ofaccused is that, “the said candidates were sent for the signature ofPrincipal and Registrar. But because of the Principal……..., I toldthe said candidate that you are taking stipend. All you have to payin advance only then you will be given Transfer Certificate(TC) andMark Memo. After saying that he was ready to pay. Also, the saidcandidates have paid money to me and I will deposit that money inthe accounts department, the concerned officer…………….., has tookout the money from my pocket. Also he did it all deliberately. If Ihad to take money, I would have taken it from every candidatesince morning.”10.It appears that, the statement of accused is recordedimmediately on the day of trap itself. Here, there is no dispute or -9- Cri.Appeal.272.2004challenge about accused accepting the amount. Specific defence ofaccused since inception is that, complainant is a student of ITIcourse was recipient of stipend. He discontinued the course afterenrolling himself in employment office and therefore was in need oforiginal documents and therefore Principal had directed him torepay the stipend. Though, Principal is not examined byInvestigating Officer, complainant himself has admitted that,Principal Gosavi had asked him that if he want original documentsto be returned, then he will have to repay the stipend. Even panchawitness PW2 Sunil in his cross examination admitted that in ACBoffice, he had learnt about said stipend to be returned. Therefore,the tenor of the cross examination of complainant, shadow panchaand Investigating Officer goes to show that the defence taken sincebeginning is that amount accepted was towards return of stipendand not towards bribe as alleged. 11.It is fairly settled that, mere recovery of taintedcurrency, is itself not sufficient to record guilt. Rather, it is burdenon prosecution is proved that the amount recovered was only andonly bribe amount and not otherwise. There is material suggestingdues towards complainant and having left the course, complainantwas expected to refund the stipend earned and availed by him. 12.Consequently, there is doubt as to what the amount -10- Cri.Appeal.272.2004paid by complainant was towards. Doubt having crept in, benefithas go to accused. Defence of accused has been probabilized tolarger extend. Here, prosecution has not proved the case beyondreasonable that the amount demanded was only towards bribe andfor not any other purpose.13.Cross examination, in paragraph no. 7 of thecomplainant supports the defence in clear terms that repayment ofstipend availed, was to be refunded while seeking back thedocuments. Even shadow panch PW3 Sunil while under crossexamination admits that in ACB office itself, the he was asked torefund amount of Rs.300/- towards stipend while seeking back T.C.and marks memo. 14.With such material, it is a fit case for benefit of doubt,as prosecution did not prove that there was demand of bribe onlyand money accepted was not towards any other consideration. 15.In paragraph no. 23 of the judgment, the trial court hasobserved that, during pendency of trial, both the witnesses are wonover by the forces playing the roles in or outside the courtpremises and resultantly there are few admissions supportingdefence, but still learned trial court seems to have appliedprinciples enumerated in the case of Krishna Mochi v. State of -11- Cri.Appeal.272.2004Bihar, AIR 2002 Supreme Court 1965, applied the observationstherein and held the case as proved, applying presumption asavailable under section 20 of P.C. Act, recorded the guilt withoutgetting satisfied that there is a specific defence and the same hasbeen probabilized, which is the only burden on accused.16.Perused the judgment. Apparently there is improperappreciation of evidence. The above discussion and featuresnoticed by this court on re-appreciation are not taken into accountby learned trial Judge and hence interference is called for. Hence,the following order :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to Suresh S/o. HarichandraHood in Special Case No. 12 of 2000 by learned SpecialJudge, Aurangabad on 13.04.2004 for the offencepunishable under sections 7, 13(1)(d) and 13(2) ofPrevention of Corruption Act, 1988, stands quashed andset aside. III)The appellant stands acquitted of the offence punishableunder sections 7, 13(1)(d) and 13(2) of Prevention ofCorruption Act, 1988,.IV)The bail bonds of the appellant stands cancelled. -12- Cri.Appeal.272.2004V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale