Shankar Balwant Malvankar v. The State of Maharashtra

(i) Tahsildar Singh and Another vs. State of U.P. [(1959) SCC OnLine

9. Learned APP, on the other hand submitted that prosecution has proved the demand, payment of bribe and valid sanction sufficiently. He submitted that the conduct of the accused is ‘telling’ in as much as there was no reason for the public servant to go to complainant's private office when there was no official work involved. He submitted that it is beyond doubt that on seeing the raiding team, the Appellant/Accused No. 1 ran away and was apprehended. He submitted that if the time of the day when the trap was executed is seen, that is 7 to 8 p.m. in the evening, what possibly prompted the Appellant/Accused No. 1 to go to a private office of a contractor, must be considered. He submitted that the panchas were from other government department, namely Employment Exchange and the procedure for pre-trap preparation and panchanama as well as post-trap panchanama was properly followed. He submitted that PW3- Panch has supported and corroborated the case of the prosecution. That no witness has turned hostile. That there is no fatal discrepancy or contradiction to create reasonable doubt. He submitted that from the evidence of PW3-Panch, it can be seen that Appellant/Accused No. 1 was in a hurry who demanded the bribe and accepted the same. That the fact that Appellant/Accused No. 1 came to the office of complainant, and attempt of running away, is fully corroborated. That there are no major contradictions or fatal omissions. That none of the witnesses had any enmity with the Appellant/Accused No. 1 and had no reason to implicate him falsely. That there is nothing on record to indicate previous dispute between parties. That scientific evidence on record, in the form of anthracene powder found on the inner part of Appellant's shirt pocket, hand and hair is more than sufficient to prove the guilt beyond reasonable doubt. That Appellant/Accused No. 1 has not denied his visit to the office of the complainant and has in fact admitted the same in the statement under section 313 of CrPC. That the sanctioning authority PW[1] had applied his mind before granting sanction and the same is duly proved. He finally submitted that no interference is required and that the Appeal deserves to be dismissed. He relied on the judgment in Neeraj Dutta v/s State (Government of NCT of Delhi) [(2023) 4 SCC 731.

10. In rejoinder, learned Senior Advocate for the Appellant submitted that there is no charge for initial demand. Relying on Section 8 of the Evidence Act he submitted that there is no issue involved regarding conduct of the Appellant. ANALYSIS, REASONS AND CONCLUSION

11. I have carefully considered the rival submissions. I have perused the depositions of the witnesses, statements of the Appellant/Accused No. 1 u/s. 313 of the CrPC, and the impugned judgment.

12. PW-1 has stated as under. That the Deputy Commissioner has prepared the case papers and notes. That he has studied the case papers from which the allegations are revealed. That he has approved the notes prepared by the Deputy Commissioner and kept the same before the General Body meeting. That General Body of the Municipal Corporation accorded sanction to prosecute the Appellant vide Resolution No.7 and accordingly, he has given sanction to prosecute. The sanction order has been identified by him by stating that the sanction order shown to him bears his signature and its contents are correct which was then marked as Exh.16.

13. PW-2-Complainant has stated as under. That on 26.06.2001, both the accused came to his office and when he requested not to issue any notice of demolition and when Accused No.2 Sharma asked him to pay Rs.20,000/-, he requested for giving concession. The complainant clearly stated thereafter that on concession being asked, the Appellant/Accused No.1 asked to pay Rs.15,000/-. That then the complainant asked to give more concession, on which Accused No.2 Sharma told to pay Rs.12,000/-. The complainant has clearly stated that Appellant/Accused No.1 asked about the date of payment of remaining amount and the complainant told that he will pay it on 03.07.2001. The complainant has clearly stated about going to ACB office at Worli on 02.07.2001 and thereafter being directed to go to ACB office at Thane. The complainant has supported the case of the prosecution about preparation of the trap. He has then stated that he called Appellant/Accused No.1 and asked him to come to his office, for payment of Rs.7,000/- He has then stated that when he and panch No.1 went to his office, the Appellant/Accused No.1 came there after 45 minutes. That he inquired with Accused No.1 as to why he is alone and Accused No.2 has not come; on which, Accused No.1 stated that Accused No.2 is ill. The complainant then offered tea-coffee which was declined by Accused No.1. The complainant then told Accused No.1 that Rs.5,000/- are paid to Accused No.2 Mr. Sharma. The Complainant has thereafter stated that he handed over the amount to Accused No.1 which he accepted, counted notes and kept in the pocket of his shirt. The complainant has thereafter stated that himself, panch No.1 and Accused No.1 came out and on signal being given, other members of the raiding party came, then Appellant/Accused No.1 ran away, jumped over the compound wall, who was chased and accosted. The Complainant has thereafter stated that on being apprehended, Appellant/Accused No. 1 was taken to his office where he was inspected under ultraviolet lamp, when his hands as well as inner parts of the shirt pocket were found shining bluish. The Complainant has stood his ground in the cross-examination. He has denied suggestion about thrusting of amount in the pocket of the Appellant or about pushing while the Appellant was trying to return the amount.

14. PW-3 Panch No.1 has stated as under. That he was working in the Employment Exchange Department at the relevant time, when he along with other employee, Mr. Bhalerao were directed to attend the ACB office. That their willingness was taken to act as Panch in a trap case. That he gave consent. That the complainant was present in the ACB office, who was introduced by the concerned PI. That thereafter complainant narrated his grievance. That he read the complaint and thereafter signatures were put. He has supported the case of the prosecution by stating that search of the complainant was taken and an amount of Rs.7,500/- was found on him. PI Tambe took out amount of Rs.7,000/- and returned Rs.500/- to complainant. That 14 bank-notes of Rs.500 each were taken out and its serial numbers were noted. The banknotes were shown under ultraviolet light without any shine. Thereafter, anthracene powder was applied and checked under ultraviolet lamp, which were found shining bluish. Thereafter, PI Tambe handed over the bank-notes to complainant which he kept in his shirt pocket. Thereafter, pre-trap Panchanama was prepared and signed. The pre-trap Panchanama was shown and signature thereon is identified by the witness. Its contents are stated to be correct. He has stated that in complainant’s office, the Appellant/Accused No.1 said that he is late and asked the Complainant to give balance amount and allow him to go. This witness has corroborated the case of Complainant giving tainted notes from his pocket to Appellant/Accused No.1. That Appellant/Accused No.1 accepted the amount and put it in the pocket of his shirt. That the Complainant thereafter went outside and gave signal. Thereafter, the other members of raiding party rushed to the office and when accused saw them, he ran away and jumped over compound wall, who was thereafter chased and apprehended. Thereafter accused was brought to the office of complainant and bank notes were brought to the office. The serial numbers were verified, which tallied with pre-trap Panchanama. The notes were found shining under ultraviolet light. Thereafter, shirt of the Accused was seized. Posttrap Panchanama came to be prepared. Post-trap Panchanama was shown to the said Panch on which signature was identified and contents are stated to be correct.

15. The Investigating Officer P.I. Mr. Tambe is examined as PW-4. He has stated that in 2001 he was working as Police Inspector with ACB, Thane. That on 03.07.2001, the complainant came to the ACB office and narrated the grievance which was typed, 2 panch witnesses were called from the office of Employment Exchange. Their readiness and willingness to act as panchas in the trap case, was ascertained. That thereafter, the complainant narrated his grievance, panchas read the complaint and signed the same. That complainant was searched and amount of Rs.7,500/- was found on him, out of which Rs.7,000/- were taken for using as bribe/trap amount. Rest of the amount was returned. Serial numbers of the bank notes were noted. The procedure for pretrap panchnama was followed. The bank notes were tainted with anthracene powder. PHC Patil folded the tainted bank notes and kept it in the front pocket of shirt of the complainant. The complainant was explained about signal to be given. The panchas were instructed. Thereafter, the complainant, the panchas and the Investigating Officer went to the complainant’s office. Thereafter, the complainant and PW-3 panch no. 1 went inside the office and the Investigating Officer and other panch and members of the raiding team were watching from safe distance. After some time, the Appellant/Accused No.1 came to the complainant’s office. After some time, the complainant came outside followed by PW-3 panch no. 1 and Appellant Accused No.1. The complainant gave signal and the IO with panch No.2 and other members of raiding party rushed to the spot. However, the Appellant/Accused No.1 ran away and jumped over compound wall, he was chased and accosted. The Appellant No.1 tried to rescue himself and also tried to remove the anthracene powder from his hands by moving his hands towards his head. That the tainted notes lying near compound wall were recovered. That Appellant’s slipper was also recovered lying at some distance. Thereafter, the Appellant No.1 was checked under ultraviolet lamp when his fingers, inner part of the front pocket of his shirt and hair were found shining bluish. Then his shirt was taken into custody. The bank notes were seized and kept in a sealed envelop. Then the complainant was called and was checked under ultraviolet lamp where his fingers and inner part of the front pocket were found bluish and tainted notes were not found with the complainant. Then post trap panchnama was prepared. In cross-examination, this witness has stood his ground. In an answer to suggestion, he has specifically stated that the Appellant/Accused No.1 was within his site, till he was accosted. He has denied the suggestion that it was raining at the time of incident, but he stated that it had already showered. He has denied the suggestion of bank notes being wet. He has denied suggestion about false implication of the Appellant.

16. In State of Uttar Pradesh Vs Naresh and Ors [(2011) 4 SCC 324], Hon’ble Supreme Court, in paragraph 30 has observed that “in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time” It is further observed that “minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.” It is also observed that “The omissions which amount to contradictions in material particulars i.e. go to the root of the case or materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.”

17. In the light of above legal position, let us now consider the arguments advance by learned counsel for the Appellant, one by one.

18. It is submitted that there is no separate charge for initial demand on 26.06.2001. That is not fatal because demand and acceptance on 03.07.2001 is duly proved as charged, as will be demonstrated hereinafter.

19. So far as the argument about the sanctioning authority not applying its mind for sanction is concerned, it cannot be accepted that the sanctioning authority must follow the chronology as suggested by the Accused. This argument about chronology is too much of an argument. Authorities are not expected to behave in the exact way the accused or their advocates want. In the cross-examination, PW-1 has stood his ground that he has studied the papers prepared by his subordinate and after his approval, the same were prepared finally. He has also clearly stood his ground by stating that the figures written in ink in the sanction order were studied by him and then signed. He has answered about the time taken for according sanction, that time was taken because he was required to study the papers. The defence has clearly invited this to come on record, but defence has to blame itself for that. The evidence of PW-1 Municipal Commissioner inspires confidence and is thus sufficient to hold that sanctioning authority had applied its mind and had granted sanction. Therefore, the requirement under Section 19 of the said Act is duly complied with.

20. The next argument that there is no demand by Appellant/Accused No.1 on the date of trap i.e. 03.07.2001 and there is only recovery. This is also devoid of merits. It is clearly stated by PW-3 Panch no. 1 that on the date of trap i.e. 03.07.2001, when the Appellant/Accused No.1 came to the office of the Complainant, the Complainant inquired about Accused No.2. Then Appellant/Accused No.1 said that he was ill and then Appellant/Accused No.1 said that he is late and ‘asked the Complainant to give balance amount’ and allow him to go. This clearly establishes demand on 03.07.2001.

21. I have perused the record and proceedings. The post trappanchnama clearly indicates that on 03.07.2001, the Appellant/Accused No.1 had demanded Rs.7,000/- and after the same was given to him, bank-notes were accepted by him. At that time, seeing the raiding party, he tried to run away who was chased and accosted. On examining Appellant/Accused No.1 under ultraviolet lamp, anthracene powder was found on his both hands, in the front pocket of his shirt, as well as front side of his shirt and to his hair. Therefore, there is no merit in the submission that no demand was made by the Appellant on the date of trap i.e. 03.07.2001.

22. So far as the argument about non-corroboration by Appellant/Accused No.1 about demand on 03.07.2001 is concerned, in my view this is not contradiction at all. At the most, it can be an omission. In any case, there is no material contradiction. Evidence of panch witness PW-3, coupled with panchnama is sufficient to prove demand on 03.07.2001. The evidence by PW[3] Panch No. 1 is sufficient to inspire confidence. So far as the acceptance of the bribe on 03.07.2001 is concerned, it is proved beyond reasonable doubt, in view of clear statements by the Complainant PW-2 and PW-3 Panch No. 1 and PW-4 IO Mr. Tambe coupled with scientific evidence in the form of anthracene powder found on Appellant Accused No. 1’s both hands, in the shirt-pocket and hair.

23. There is also no merit in the argument that if initial demand (on 26.06.2001) is not proved subsequent evidence is of no consequence. In this respect, it is material to note that the complainant by entering witness box as PW-2 has clearly stated that on 26.06.2001, Appellant/Accused No.1 asked about date of payment of amount and the Complainant told him that he will pay it on 03.07.2001. In the complaint also, it is stated that the Appellant/Accused No.1 on 26.06.2001 told the Complainant that he will call in advance and inform about when he will come for collecting money. Therefore, the initial demand on 26.06.2001 is clearly proved.

24. The argument about bank-notes recovered being soaked and muddy is nothing but a lame attempt to create doubt. The evidence on record in the form of post-trap panchnama clearly establishes that the anthracene tainted bank notes with serial numbers recorded in pre-trap panchnama were recovered from near compound wall, where they were thrown by the Appellant/Accused No.1 during his attempt to run away. It is clearly stated in the post-trap panchnama that when the Appellant/Accused No.1 was apprehended, he tried to rub his hands on his hair. It is also recorded that Appellant/Accused No.1 led the raiding party to place near compound wall where the bribe amount was thrown away. This sequence of events as well as the fact of recovery of tainted notes at the instance of Appellant/Accused No.1 establishes beyond reasonable doubt that the Appellant/Accused No.1 accepted the bribe.

25. The argument that the IO is interested witness is only stated to be rejected. There is nothing on record to show that the IO had any enmity with the Appellant/Accused No.1.

26. The next argument is that the point framed in determination by the Trial Court does not mention demand. It can at the most be said to be irregularity and cannot be fatal to the decision, because perusal of the judgment shows that the aspect of demand is considered by the Trial Court in paragraph Nos.19 & 20 of the impugned judgment. Relying on the judgment Hazari Lal V. State (Delhi Administration) [1980 Cr. L.J 564], it is held by the Trial Court that if the recovery of bribe amount is coupled with other circumstances, it can be said that offence is committed.

27. There is no merit in the submission that benefit of doubt given to the Accused No.2 must be given to Accused No.1 also, because same charge is framed against both the Accused. In the facts and circumstances narrated above, it is clear that there is overwhelmingly different and clear evidence about involvement of Appellant/Accused No.1 as compared to Accused No.2. In view thereof, there is nothing doubtful for which, benefit can be given to the Appellant/Accused No.1.

28. Learned Counsel for the Appellant submitted that PW-3 Panch No. 1 has stated that Assistant to P.I. gave the tainted notes to complainant who kept it in his front pocket, but PW-2- complainant has stated that PI Tambe has kept the tainted notes in complainant’s front pocket of his shirt and PW-4 IO has stated that PHC-Patil folded the tainted notes and kept in front pocket of Complainant. In my view, this contradiction is not at all fatal, in as much as the fact of tainted bank notes being handed over to the complainant for use in the trap is proved beyond reasonable doubt and therefore, who placed the bank notes in the complainant's pocket during preparation of the raid, is immaterial.

29. Therefore, the discrepancies shown by the learned counsel for the Appellant/Accused No.1 are not so fatal, as to discard the entire evidence or to hold the prosecution witnesses not credible. None of the witnesses have turned hostile. Panch No. 1 – PW[3] is an independent witness.

30. The delay in filing complaint is expected considering that the Complainant decided to escalate the issue upto anti-corruption bureau and went ahead to participate in a trap. The complainant first went to ACB Worli, who was then directed to ACB, Thane. Then complaint was filed and trap was planned and executed. Therefore it is not fatal.

31. No bar under any law is shown to me that IO and trap laying officer can not be same.

32. In Mehboob Shaikh Vs State [2004 (2) SCC 362], the Hon’ble Supreme Court in paragraph 12 of its judgment has observed that “There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if they were, said Bose, J., about half a century back in Willie (William) Slaney v. State of M.P (AIR 1956 SC 116). A decision is available as a precedent only if it decides a question of law.”

33. The facts of each case are unique and whether an offence is committed and whether there is evidence beyond reasonable doubt is intrinsically dependent on facts and circumstances of each case. Even then, learned Senior Advocate for the Appellant has chosen to rely upon nine judgments which now, I will consider one by one.

34. In K. Shanthamma (supra) it is held that proof of demand and acceptance is sine qua non for establishing the offence under Section 7 of the said Act. There is no dispute about this proposition. However, since in the present case, both demand and acceptance is found to be proved beyond reasonable doubt, the said judgment will not advance the case of the Appellant/Accused No.1.

35. In the case of Sunil A. Thete (supra), this Court was considering a revision arising out of discharge application. It was found that the sanctioning authority has acted in a ‘perfunctory manner’ and though it formed an opinion that the prosecution is not warranted, and though it was expressly opined, even then only on the dictum of Law Department, sanction order was issued. In Anand Murlidhar Salvi (supra) also, this Court found on facts that sanctioning authority had not exercised the jurisdiction under Section 19 of the said Act who had simply put its signature on draft Sanction Order. The facts of the present case are completely different. In the present case, PW-1 Municipal Commissioner is found to have applied his mind independently after studying the matter and has then granted sanction. Therefore, said judgments will also not help the Appellant/Accused No.1.

36. In the case of Shrikant Chimaji Jahagirdar (supra), learned Single Judge of this Court was of the opinion in the facts of that case, that the Trial Court was not justified in holding that the demand is proved. In the present case, as already indicated above, on the appreciation of evidence, the Trial Court has come to correct conclusion that both the demand and acceptance are proved and therefore, this judgment will also not help the Appellant/Accused No.1.

37. Learned counsel for the Appellant relied upon the case of Mir Mustafa Ali Hasmi (supra), wherein Hon’ble Supreme Court has observed in Para 32 that it is settled convention that Trap Laying Officer makes effort to verify the factum of demand of bribe before initiating the trap proceedings. Close reading of Para 33 and 34 of the said judgment shows that in that case, the complainant and panch/shadow witness were friends and the complainant had asked the panch witness to accompany him as shadow witness during trap proceedings. It was also found that the said panch witness himself bore a grudge against the accused therein. In this context, it is held that the IO was duty bound to verify the factum of alleged demand. The facts of the present case are completely different. There is nothing to conclude that the witnesses in the present case had any grudge or enmity against the Appellant / Accused No. 1. The panchas in this case were working with Employment Exchange who were independent persons. In that view of the matter, the said judgment will not advance the Appellant’s case.

38. So far as the judgment of Yogarani V. State (supra) is concerned, the Hon’ble Supreme Court has observed that Court cannot convict one accused and acquit the other when there is similar or identical evidence pitted against two accused persons. There is no dispute about this proposition. However, in the present case, as already indicated above, the evidence about Accused Nos.[1] & 2 was materially different and therefore, the Appellant/Accused No.1 has been rightly convicted while giving benefit of doubt to Accused No.2. Therefore, this judgment will also not help to the Appellant/Accused No.1.

39. So far as judgment of Shridhar Chavan (supra) is concerned, the same is relied upon for the argument about necessity of initial demand. In the present case, as already indicated above, initial demand is proved beyond reasonable doubt and therefore this judgment also will not help to the Appellant/Accused No.1.

40. So far as the judgment of Tahsildar Singh (supra) is concerned, since this Court is not relying on any statement given by the Complainant to police, it is not necessary to discuss it any further.

41. Now coming to the last argument of the learned Senior Advocate Mr. Kulkarni for the Appellant, that PW-4 (IO) Mr. Tambe was not duly authorised u/s. 17 of the said Act, to conduct investigation and therefore conviction based thereon can not be sustained. Judgment of Rajaram Banderao Kulkarni (supra) is relied upon in support of this case. In the said judgment, learned Single Judge of this Court found that investigation was done by officer not authorized to investigate the offence. In that case the IO had admitted in the cross-examination that he did not obtain any permission from the Dy. Commissioner of Police or Magistrate to arrange trap. In the teeth of such clear admission, the learned Single Judge of this Court has acquitted the Accused therein. The facts in the present case are completely different.

42. In the present case, this argument about IO not being authorized was not argued before the Trial Court, nor any such suggestion was given in the cross-examination of the IO. Recently the Hon’ble Supreme Court in the case of Dashrath Vs. State of Maharashtra [2025 SCC OnLine SC 1054], has held as under:

43. It is therefore, clear that there exists a Government Order dated 19.04.1989 for State of Maharashtra, as per first proviso to section 17 of the said Act, authorizing all Inspector of Police in ACB to investigate any offence punishable under the said Act and to make arrest therefor without a warrant. Judicial notice of it, taken by the Special Court, has been approved by Hon’ble Supreme Court.

44. The argument of learned Senior Advocate is directly in the teeth of this Government Order. I find it hard to believe that neither the learned Senior Advocate nor the APP knew about this order. It is unfortunate that it was not pointed out to the Court by the APP. Likewise, despite said Government Order, this argument was advanced in all seriousness by the learned Senior Advocate. It is not expected. It is when such arguments are advanced that the precious judicial time is wasted in finding out the relevant material ‘in the pursuit of truth’ which is the whole purpose and essence. This situation requires serious thought and self introspection.

45. Therefore there is no merit in the argument that PW-4, IO Mr. Tambe was not authorized to investigate the matter.

46. In view of the aforesaid facts and circumstances, there is no merit in the appeal and the same is dismissed. The conviction under impugned Judgment and Order is confirmed.

47. The bail bond of the Appellant and his surety’s bond, if any, stand cancelled.

48. The Appellant is given 6 weeks’ time from the date of uploading of this order, to surrender before the Special Court (Anti- Corruption), District and Sessions Court, Kalyan. (M.M. SATHAYE, J.)