Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 437 OF 2011
Diksha Bharat Dhande ..Appellant
The State of Maharashtra ..Appellant
Ketkee Kamble i/b. Mr. B. G. Tangsali for Appellant in Criminal
Appeal No.437 of 2011.
Mr. Pankaj P. Devkar, APP for State/Respondent in Appeal No.437 of 2011 and for the Appellant in Appeal No.1319 of 2011.
Mr. Dushyant Pagare a/w. Shubhashree Yewale for Respondent in
Appeal No.1319 of 2011.
JUDGMENT
1. Both these Appeals are decided by this common Judgment today because they arise out of a common Judgment and order passed by the learned Special Judge (Anti Corruption) 2 of 43 907-Apeal-437 & 1319-11 (J) Thane, on 16.04.2011, in Special Case No.17 of 2006. The Appellant Diksha Dhande in Criminal Appeal No.437 of 2011 was the original Accused No.1 and the Respondent Chahu Mhatre in Criminal Appeal No.1319 of 2011 was the original Accused No.2. For the sake of convenience, both of them are referred to by their original status as the accused before the trial Court.
2. The learned Trial Judge convicted the Accused No.1 Diksha for commission of the offence punishable U/s.[7] of the Prevention of Corruption Act, 1988 (for short ‘P.C.Act’) and sentenced her to suffer imprisonment for one year and to pay a fine of Rs.5000/- and in default to suffer S.I. for two months. She was also convicted for commission of the offence punishable U/s.13(1)(d) r/w. S.13(2) of the P.C.Act and was sentenced to suffer imprisonment for one year and to pay a fine of Rs.2000/and in default to suffer S.I. for two months. Both the substantive sentences were directed to run concurrently.
3. The Accused No.2 Chahu was acquitted from the charges of commission of the offence punishable U/s.12 of the P.C.Act. 3 of 43 907-Apeal-437 & 1319-11 (J)
4. The Criminal Appeal No.437 of 2011 is preferred by the accused No.1 Diksha against the judgment and order of conviction and sentence. Whereas, Criminal Appeal No.1319 of 2011 is preferred by the State of Maharashtra challenging the judgment and order of acquittal recorded in favour of the Accused No.2 Chahu.
5. Heard Mr. Suryawanshi, learned counsel for the Appellant in Criminal Appeal No.437 of 2011, Mr. Pankaj Devkar, learned APP for State/Respondent in Criminal Appeal No.437 of 2011 and for the Appellant in Criminal Appeal No.1319 of 2011, and Mr. Dushyant Pagare, learned counsel for Respondent in Criminal Appeal No.1319 of 2011.
6. The prosecution case is that the Accused No.1 Diksha was working as a Senior Clerk and Tax Inspector in the Administration department at Turbhe, ‘D’ division, Navi Mumbai Municipal Corporation (for short ‘NMMC’) and the Accused No.2 Chahu was working as a peon in the same office. One Manoj Chaurasiya had purchased a room in Turbhe area. He wanted the 4 of 43 907-Apeal-437 & 1319-11 (J) NMMC to update the record in his capacity as the purchaser of that room. As per the prosecution case, the Accused No.1 Diksha initially demanded Rs.5000/- for doing that work, but settled and agreed for accepting Rs.3000/-. The said Manoj Chaurasiya had given an authority letter to the complainant in this case Mr. Annappa Ragi to do this work. The complainant Annappa Ragi did not want to pay the bribe amount of Rs.3000/- to the Accused and, therefore, they approached the Anti Corruption Bureau (for short ‘ACB’). The complainant Annappa gave his complaint. The officers of the ACB called two panchas. One of them was sent with the complainant for the verification of the demand made by the Accused No.1. They went to her office on 06.09.2005. She again demanded the amount of Rs.3000/-. The verification panchanama was recorded. The officers arranged to lay a trap on 08.09.2005. On that day, the complainant had brought an amount of Rs.3000/-. The anthracene powder was smeared on the currency notes. The complainant and the panchas were given demonstration of the effect of the anthracene powder. The pre-trap panchanama was conducted. After that, the complainant and one of the panchas 5 of 43 907-Apeal-437 & 1319-11 (J) went to the office of the Accused No.1. She gave the file of their work to them and then asked them to pay the amount to the Accused No.2 Chahu. Accordingly, the complainant handed over the notes smeared with anthracene powder to the Accused No.2 in presence of one of the panchas. The other raiding party members were standing in the vicinity. The complainant gave a pre-arranged signal. The other pancha and the investigating officer rushed towards the Accused No.1. She was apprehended. The pancha and the complainant pointed to the Accused No.2 as the person who had received the bribe amount. They informed that the bribe amount was kept by the Accused No.2 in his pant pocket. The pancha No.2 was asked to remove those notes from his pant pocket. Accordingly, the notes were recovered. They were tallied with the pre-trap panchanama. The hands of the complainant and the Accused No.2 were seen under the ultra-violate light. It showed presence of anthracene powder on their hands. Thereafter the I.O. registered the F.I.R. vide C.R.No.135 of 2005 at APMC police station, Navi Mumbai. The post-trap panchanama was recorded. The investigation was carried out and the charge-sheet 6 of 43 907-Apeal-437 & 1319-11 (J) was filed. The case was tried before the learned Special Judge, as mentioned earlier.
7. During the trial, the prosecution examined PW-1 Madhukar Kokate who was the Commissioner of NMMC at that time. He had accorded the sanction to prosecute both the accused. PW-2 Annappa Gundappa Ragi, was the complainant. PW-3 Manoj Chaurasia was the purchaser for whose work this amount was demanded according to the prosecution case. PW-4 Nitin Pandharinath Nagare was one of the panchas who was present at the time of verification of the demand and also at the time of acceptance of money by the Accused No.2.
8. The defence of the Accused No.1 was of total denial. She had given her defence in writing in the statement U/s.313 of the Cr.p.c. According to her, she had never demanded Rs.5000/- for transferring the room in the name of Manoj Chaurasia. The application for transferring the room was dated 04.06.2005, but it was submitted in her office on 05.09.2005, therefore, it was not possible that she could have demanded the amount on 01.09.2005 7 of 43 907-Apeal-437 & 1319-11 (J) or 02.09.2005. After the application for transfer was given on 05.09.2005, the complainant had brought a letter of authority given by Manoj Chaurasia only on 06.09.2005. As per their procedure, it was necessary to record the statements of the purchaser and the seller before completing the formality of transferring the room. After that, the transfer fees was required to be paid. In this case, the transfer fees was paid by the complainant on 08.09.2005 and after that the documents came to her for further compliance. This itself demonstrates that the allegation that she had demanded the bribe amount on 01.09.2005, 02.09.2005 and on 06.09.2005 was false. She has further mentioned in her statement that, even as per the main panchanama there was no reference to her demand at all. The transfer certificate is given under the signature of the Divisional Officer. It was not within her powers and, therefore, there was no question that she would demand the money for that work. This was her defence.
9. The Accused No.2 also gave his statement U/s.313 of the 8 of 43 907-Apeal-437 & 1319-11 (J) Cr.P.C. He has stated in his statement that he was working with the NMMC as Peon at ‘D’ Ward, Turbhe. The complainant Annappa Ragi used to regularly visit their office for work. On 08.09.2005, the complainant Annappa came to his office. He took out Rs.500/from his shirt’s left pocket and gave it to the accused No.2 with his right hand. The Accused No.2 took it in his left hand and kept in his hip pant pocket with his right hand. He then went to the Cashier and paid the transfer fees of Rs.213/- and took the receipt. After that, the receipt and the balance amount of Rs.287/- was returned to the complainant Annappa. He had never demanded any money from the complainant Annappa and had never accepted the bribe amount. A false case was lodged against him.
10. The learned Judge considered the evidence on record and the defence taken by both the accused. The learned Judge was of the view that the Accused No.2 was not knowing about the work of the transfer certificate. There was no evidence to show that there was a talk between the Accused No.1 and 2 in presence of the complainant. There was no evidence to show that the Accused No.2 was aware of the demand of Rs.3000/- towards the 9 of 43 907-Apeal-437 & 1319-11 (J) illegal gratification by the Accused No.1. He had merely accepted the money because the Accused No.1 had told him to take the money from the complainant and then handed over the certificate. Therefore, according to the learned Judge, the Accused No.2 was not guilty. But, based on the evidence of PW-2 Annappa and PW-4 Nitin, he convicted and sentenced the Accused No.1, as mentioned earlier.
11. PW-2 Annappa Ragi is the complainant in this case. He has deposed that, he was a Civil Contractor and he was also a social worker. He knew Manoj Chaurasia, who was running a paan shop. Manoj had purchased a house from one Smt. Qureshi. He wanted to get that room transferred in his name. On 01.09.2005, Manoj had approached him and had requested him to accompany him to NMMC for the purpose of getting the house transferred in his name. Being a social worker, PW-2 accompanied Manoj to Turbhe Ward in NMMC. Manoj had also applied for transfer of his house in his name. Both of them met the Accused No.1 who was serving on that table in NMMC. PW-2 requested her to do the work of transfer of Manoj’s house as early as possible. She answered 10 of 43 907-Apeal-437 & 1319-11 (J) that, she would do it and told them to come afterwards. Then both of them went away. Again on 02.09.2005, both of them met the Accused No.1 regarding their work. She told them that the work was completed but her superior was not available and that they should complete their part of the transaction. They assured her that they would do it. According to PW-2, she had asked to pay the money. PW-2 did not know what was the amount. He offered to pay Rs.3000/-. She asked Manoj to bring that amount. PW-2 assured her that the said amount would be brought on the next day. PW-2 and Manoj then went to ACB’s office and lodged the complaint. He did not remember the date when they went to the ACB’s office, but he remembered that they made the complaint that the Accused No.1 was demanding Rs.3000/-. He had signed the complaint. It is produced on record at Exhibit-24. PW-2 further deposed that the officer attached to the ACB’s office sent some persons to NMMC for enquiry. PW-2 had also accompanied them to NMMC for making the enquiry. According to him, after verification, they came back to ACB office on the next day. Then the anthracene powder was applied on the 11 of 43 907-Apeal-437 & 1319-11 (J) currency notes. He put it in his chest pocket and went to NMMC office. There was one note of denomination of Rs.1000/- and four notes of the denomination of Rs.500/- each. He was asked to give those notes to the Accused No.1 on her demand. Some writing was already made. The police, he himself and other two witnesses went to the Ward office. PW-2 himself and PW-4 Nitin went ahead in the office of the Accused No.1 and others were waiting outside. After they entered her office, they asked the Accused No.1 whether the work was done. She told them that the work was completed. Then she asked them to meet one mama who was a peon in the office. He was not present. PW-2 waited for him. After some time, the said mama came. PW-2 told him that the work was completed and to take the file to the Accused No.1. According to the prosecution case, the said mama was the Accused No.2. He then gave that file to the Accused No.1. Then PW-2 gave the money to the Accused No.2. He had no talk with the Accused No.1 after that. Thereafter the Accused No.1 gave him the order. He then went away. He then informed the officers waiting outside that his work was completed, by raising his hand; because that was the pre-arranged signal. The 12 of 43 907-Apeal-437 & 1319-11 (J) officers and others came inside the office. PW-2 had deposed that he did not know what happened thereafter and that he was never called inside the office. He identified both the accused before the Court. But he added that he was never called after that by the ACB officer, his statement was not recorded and he could not identify the money which he had given to the Accused No.2. As he deposed in this manner, the learned APP asked for the permission from the Court to cross-examine the witness. That permission was granted. It is significant to note here that, there is no elaborate discussion on this aspect at the time of recording of the evidence. There is a note of the learned Judge that the learned APP asked for the permission to cross-examine the witness and that the permission was granted. There was no reference that PW-2 was resiling from his statement or was not supporting the prosecution case. There is no mention in the order that, PW-2 was declared hostile. By a one line cryptic note, permission was granted to cross-examine the witness. From that point onwards, the learned APP put the questions in the form of suggestions. All those questions and the entire evidence of this 13 of 43 907-Apeal-437 & 1319-11 (J) witness was his answers to the leading questions asked to him in the form of suggestions. Just to highlight this aspect, first few lines of this kind of cross-examination are reproduced herein below: “It is true that I lodged my complaint on 6.9.2005. It is not true that Mrs.Dhande demanded Rs.5,000/- from me. She did not demand from us. She made demand with Mr.Chourasiya only. It is true that I requested Mrs.Dhande that Manoj was poor person. He cannot manage so much amount. Therefore, she said that at least Rs.3,000/- should be paid to her, otherwise work will not be done. It is true that we told her that we will bring the amount of Rs.3,000/- afterwards and to prepare the documents. It is true that Mr.Manoj said to Mrs. Dhande that he was busy in his business and family problems. Therefore, he had given the powers to me to attend the office. It is true that Mrs. Dhande to give application to Ward Officer and to send Rs.3,000/and then she will do the work and will give certificate to me. It is true that Mr. Manoj gave me the power of attorney on 5.9.2005 and I gave a written letter to Ward Officer Turbhe NMMC.” Rest of his evidence is in the similar format. There are answers to the leading questions put in the form of suggestions. He has accepted that he was introduced by the I.O. Shri. Datar to two pancha witnesses Nitin Nagare and Suresh Mistry. He then described the demonstration of effect of anthracene powder. He stated that it was true that the officer Mr. Kocharekar kept those 14 of 43 907-Apeal-437 & 1319-11 (J) currency notes in his pant pocket. He then described the instructions given to him that he should pay the money on the demand made by the Accused No.1 and to give pre-arranged signal. These affirmative answers were given to the suggestions put to him. He further stated that, it was true that, after that, they had gone to NMMC office in a police jeep and they had halted near machhi market. It was true that, he himself and Mr. Nagare went ahead to meet the Accused No.1. Then he again stated that it was true that he asked her as to whether the work was completed and she answered that the order was not yet prepared. He further deposed that, it was true that the Accused No.1 had told him to meet the Accused No.2 and that, she had told everything to the Accused No.2. He searched for the Accused No.2 and he met him at 3:40p.m. He then deposed that, it was true that the Accused No.2 told him that he would collect the file from the Accused No.1. He brought the file and gave it to him. Then PW-2 described about handing over the currency note of Rs.500/- which he took out from his shirt pocket and gave it to the Accused No.2. The Accused No.2 paid Rs.213/- to the cashier, got the receipt and returned the 15 of 43 907-Apeal-437 & 1319-11 (J) balance amount of Rs.287/- to PW-2. He then told PW-2 to pay him the money as the work was done as per the directions of the Accused No.1. PW-2 further deposed that, it was true that immediately, he took out the tainted currency notes from his pant pocket and gave them to the Accused No.2. He accepted it and counted them by both hands and kept them in his hip pocket. PW- 2 then gave the pre-arranged signal. The I.O. and other members of the raiding party came to the office of the Accused No.1. The Pancha No.1 pointed towards the Accused No.2. He was caught. PW-2 was asked to wait outside and then he was asked to come inside. His hands and clothes were checked under ultra-violate light. It showed glaze on his fingers of both hands and on the right side of pant pocket. On 9.9.2006, he was again called in the ACB’s office and his statement was recorded. He identified the accused before the Court. In the cross-examination, PW-2 stated that he was a social worker and he helped the people for getting their properties transferred in their names in the Municipal record. He was doing that work since about five to six years before the incident. The 16 of 43 907-Apeal-437 & 1319-11 (J) incident had occurred on the ground floor of the Ward office. As a procedure, the statements of the seller and the purchaser were recorded before proceeding further. Manoj had not told him the date of the application. PW-2 accepted that the application was prepared on 04.06.2005 and it was given to the Ward office on 05.09.2005 i.e. after about three months. The application was produced on record at Exhibit-25. He admitted that the process of recording the name in the register and issuing the certificate started after the payment of fees. The other formalities before the payment of fees were done by the clerk. The process started after recording the statements of the purchaser and seller. Then the file was sent to the officer through the Superintendent and after his endorsement, the registration fees was received which was to be paid to the cashier. The receipt used to be issued in duplicate and one copy was required to be given to the concerned clerk. The concerned clerk then sent the file to the Ward officer through the Superintendent and after the order was received from the Ward officer, the concerned clerk started preparing the certificate. Then the certificate was sent to the Ward officer for his signature and 17 of 43 907-Apeal-437 & 1319-11 (J) then the certificate was given to the concerned clerk for issuance. The statement of Manoj was recorded on 06.09.2005. He had told PW-2 to make the payment of transfer fees and to do the needful to get the certificate and had given him the authority letter. From 02.09.2005 to 06.09.2005 he had not made the complaint against the Accused No.1 in the ACB’s office. He accepted that, it was not mentioned in his complaint that on 02.09.2005 he had been to the office of the Accused No.1 and that she had demanded the money, and that he had offered to pay Rs.3000/- as bribe. In the cross-examination conducted on behalf of the Accused No.2, PW-2 accepted that Manoj was not with him when he had gone to the office of the ACB’s office from the office of the Accused No.1. At the time of going for the trap, he had kept Rs.3000/- in his right side pant pocket and the amount of Rs.500/was kept in his left side shirt pocket. The amount of Rs.287/which was refunded by the Accused No.2 to PW-2 was kept by PW- 2 in his hip pocket by receiving it by his right hand. He accepted that the Accused No.2 was not knowing anything about the work of issuance of transfer certificate or demand of money by the 18 of 43 907-Apeal-437 & 1319-11 (J) Accused No.1. He denied the suggestion that he put the tainted currency note of Rs.500/- in the Accused No.2’s pocket.
12. The complaint given by PW-2 is produced on record at Exhibit-24. The important date in the complaint dated 06.09.2005 is 01.09.2005. On that day, he had gone to the office of the Accused No.1. According to that complaint, on that occasion, she had demanded the bribe amount. There was no reference to the date 02.09.2005. This is important because the date of the first demand is important in this case. The prosecution has produced other documents i.e. the agreement between Manoj and Qureshi regarding sell and purchase of that particular room. The authority letter dated 05.09.2005 is produced on record at Exhibit-26. Through this letter, Manoj had given authority to PW-2 to complete the work of transfer of that property.
13. PW-3 Manoj Chaurasia was the purchaser for whose work this case was lodged. He deposed that, he approached the Ward office of NMMC on 04.06.2005 and had given his application for transfer of the property in his name. However, he did not get 19 of 43 907-Apeal-437 & 1319-11 (J) the certificate even after three months from his application. On 01.09.2005 he met the complainant Annappa who was a social worker, and requested him to accompany PW-3 to the Ward office to get the transfer certificate. They met the Accused No.1. At that time, she demanded Rs.5000/- for doing the work. The complainant-PW-2 requested her to reduce it and after negotiations, it was fixed at Rs.3000/-. PW-3 then gave the authority letter to PW-2 to complete that work. On 08.09.2005 he went to the ACB’s office along with the complainant Annappa-PW-
2. But he waited outside and PW-2 Annappa went inside the office. In the cross-examination, he stated that his statement was recorded on 14.10.2005. It was recorded in his paan shop. He reiterated that he gave the application to the Accused No.1 on 04.06.2005. But when he was confronted with the said application Exhibit-25 he accepted that it was prepared by him on 04.06.2005, but it was given in the Ward office on 05.09.2005 and then he got the acknowledgment. He had not accompanied the complainant Annappa-PW-2 when PW-2 the complainant had gone to the office of ACB on 06.09.2005. He could not explain as to why it was not 20 of 43 907-Apeal-437 & 1319-11 (J) mentioned in his statement that he was present outside the Ward office on 08.09.2005 at the time of the trap.
14. PW-4 Nitin Nagare is another important witness in this case. He was a pancha who had accompanied the complainant at the time of verification panchanama and at the time of actual trap. He deposed that, he was working as a Clerk in the R.T.O. office, Thane. On 06.09.2005 he and one Suresh Mestry were directed by his superior officer to meet Shri. Datar, Dy.S.P., ACB in his office. Accordingly, he met Shri. Datar. PW-2 Annappa was present in that office. They were introduced. They were told about the background of the case. Shri. Datar sent him and the complainant- PW-2 to the office of the Accused No.1 to verify the allegations. He then deposed about the demand made by the Accused No.1. She asked the complainant to bring Rs.3000/- on Thursday and that she would tell the Accused No.2. Based on this demand, the verification panchanama was prepared. It is produced on record at Exhibit-31 mentioning the conversation between the complainant and the accused No.1. This panchanama Exhibit-31 was prepared after they came back from the office of the Accused No.1. On 21 of 43 907-Apeal-437 & 1319-11 (J) 08.09.2005, again he attended the office of the ACB. The complainant had brought Rs.3704/-, out of which, Rs.3000/- was to be used as a trap money. It consisted of four currency notes of Rs.500 denomination and one note of Rs.1000 denomination. The remaining amount of Rs.704/- was returned to the complainant. He kept it in his left side chest pocket. The demonstration of use of anthracene powder was given. The bribe amount was smeared with anthracene powder. One Mr. Kocharekar kept those currency notes in the right side pant pocket of the complainant. They went to the D ward office of NMMC at 2:05p.m. He along with PW-2- Annappa entered the Accused No.1’s office. On enquiry made by the complainant, she answered that the order was ready but it was not signed and that they should meet the Accused No.2. They searched for him. He came after some time. He made enquiries with the Accused No.1. The Accused No.2 then brought some papers and asked the complainant to pay the fees. The complainant gave an amount of Rs.500/- to the Accused No.2 by taking it out from his left side chest pocket with his right hand. After some time, the Accused No.2 came back and brought the 22 of 43 907-Apeal-437 & 1319-11 (J) receipt of Rs.213/- and refunded the amount of Rs.287/- to PW-2 Annappa. The Accused No.1 then put the file before the Superior officer to obtain his signature. After some time, she came back and gave the file to the Accused No.2. The Accused No.2 came to the complainant and gave the file to him and told him that the work was done and, therefore, he should give the amount as directed by the Accused No.1. The complainant PW-2 took out the tainted money from the right side pant pocket with his right hand and held it before the Accused No.2; who accepted them, counted them with his both hands and put those notes in the hip pocket. Then PW-2 Annappa went outside and gave a signal. Shri. Datar and the pancha No.2 came inside. The Accused No.2 was held. Shri. Datar asked PW-4 about the money. Shri. Datar gave instructions to the Pancha No.2 to take out the money from hip pocket of the Accused No.2. He took out the money from his hip pocket. The amount was Rs.3000/-. The tainted currency notes were recovered. Other procedure was followed. The hands of the complainant were seen smeared with anthracene powder. His right side pant pocket was empty. The anthracene powder was also seen 23 of 43 907-Apeal-437 & 1319-11 (J) on the certificate which the complainant had received from the Accused No.2. In the personal search of the Accused No.2, an amount of Rs.240/- was found in his right side chest pocket. Both the hands of the Accused No.2 showed presence of anthracene powder. The anthracene powder was also seen on the border of the hip pocket. In the cross-examination, PW-4 answered that, when he went to D Ward office for verification, there was nobody with him except the complainant and he himself. In further crossexamination, he stated that he had acted as a pancha in one more case from Jawhar. The complainant never used his left hand in his presence while handing over the tainted bribe money. When his hands were checked under U.V. light, the marks of anthracene powder were seen on both palms of the complainant PW-2. PW-4 tried to explain that when the Accused No.2 had given file to the complainant, it was handled by the complainant with his right hand and then it was held with left hand and, therefore, there were the marks of the anthracene powder on his left palm. However, in explaining this, PW-4 had forgotten the prosecution 24 of 43 907-Apeal-437 & 1319-11 (J) case that the file was handed over to the complainant before the money was paid to the Accused No.2. Therefore, there was no occasion that the complainant would have anthracene powder on his left hand. This has come in his own evidence in paragraph-4. The pre-trap panchanama was produced at Exhibit-32 and posttrap panchanama was produced at Exhibit-33. The pre-trap panchanama mentions that the tainted money was kept in the right side pant pocket. However, in the next paragraph of pre-trap panchanama, it was mentioned that the complainant was asked to take out the notes smeared with anthracene powder from his left side shirt pocket with his right hand and to pay to the Accused No.1. This is an important discrepancy and there is no explanation offered by this pancha. However, the I.O. PW-5 Shri. Datar in his cross-examination has termed this discrepancy as a typographical error. The post-trap panchanama is produced on record at Exhibit-
33.
15. PW-5 Dy.S.P. Dattatraya Datar was the investigating officer. He has deposed about the complainant PW-2 Annappa approaching him on 06.09.2005 and taking his complaint which is 25 of 43 907-Apeal-437 & 1319-11 (J) produced on record at Exhibit-24. PW-5 called the two panchas. He described that on 06.09.2005 itself he had sent the complainant and the pancha No.1 Nitin for verification of the complaint. The complainant and the pancha No.1 Nitin returned back. The pancha No.1 Nitin narrated about the talks. Then the verification panchanama which is produced at Exhibit-31 in the trial was prepared. The Accused No.1 Diksha had called the complainant on 08.09.2005. PW-5 described the pre-trap procedure and the events that had occurred at the time of trap. He himself and others were waiting outside. After much time, the complainant came out and gave a pre-arranged signal. Then this witness and the other raiding party members went near the cash counter of ‘D’ Ward office. The Accused No.2 was present there. The pancha No.1 pointed to him. The Accused No.1 was also apprehended. On his instructions, the pancha No.2 took out the tainted money from the hip pocket of the Accused No.2. The numbers of the notes were tallied with the pre-trap panchanama. The U.V. light was used and it showed the glaze as mentioned by PW-4 Nitin. After that, the post-trap procedure was completed and 26 of 43 907-Apeal-437 & 1319-11 (J) the post-trap panchanama was prepared. He registered the F.I.R. vide C.R.No.135 of 2005 at APMC police station. He recorded the statements of the witnesses, obtained the sanction and filed the charge-sheet. In the cross-examination, he clarified the mistake in the pre-trap panchanama, as mentioned earlier, regarding exactly where the bribe money was kept with PW-2 Annappa after the anthracene powder was applied to the notes.
16. PW-1 Madhukar Kokate was the then Municipal Commissioner of NMMC and he had accorded the sanction to prosecute the accused. He deposed that, he had received the complaint along with other papers of the present case. The NMMC passed the resolution to prosecute both the accused persons. Then he went through the investigation papers and on being satisfied that both the accused were involved in the corruption, he accorded sanction to prosecute both of them. The sanction order is at Exhibit-16. He also proved the resolution passed by the General body of the Corporation. That resolution is at Exhibit-17. 27 of 43 907-Apeal-437 & 1319-11 (J) In the cross-examination, he accepted that, he did not have independent powers to accord sanction unless he received the resolution from the general body meeting. This, in short, is the evidence led by the prosecution.
17. Mr. Suryawanshi, learned counsel for the Accused No.1 submitted that the prosecution case was false. There were too many contradictions in the evidence led through the deposition of PW-2 Annappa and PW-4 Nitin, in particular. There was a discrepancy regarding the date of first demand which was the most important date. The procedure followed during the trial was unfair. PW-2 Annappa was asked leading questions. This was impermissible in law. PW-2 Annappa was not a hostile witness to the prosecution, and he was not declared as a hostile witness. In spite of that, the learned prosecutor was permitted to crossexamine him and by taking advantage of that permission, the entire examination in chief was then conducted through the suggestions which were in the form of leading questions. The learned counsel relied on the observations of the Hon’ble Supreme 28 of 43 907-Apeal-437 & 1319-11 (J) Court in the case of Varkey Joseph V. State of Kerala[1] to support his contention in this behalf. He submitted that the criminal trial in the present case was unfair and the procedure adopted was illegal and unconstitutional. Mr. Suryawanshi further submitted that, there is a clear attempt to implicate the accused falsely because the application was dated 04.06.2005. PW-3 Manoj had given evasive and contradictory answers as to when that application was tendered in the office. He had admitted that it was submitted only on 05.09.2005. In that case, there was no occasion for the Accused No.1 to make a demand on 01.09.2005 or even on 02.09.2005. Surprisingly, PW-3 Manoj had not given the complaint and had not remained present with the complainant PW-2 Annappa at the time of lodging the complaint or laying the trap; though, PW-3 Manoj claimed that on 08.09.2005 he was waiting outside the ACB’s office, as well as, outside the office of the Accused No.1. There is a major discrepancy as to where the currency notes smeared with anthracene powder were kept. Whether they were kept in shirt pocket or pant pocket of the complainant is not clear from the pretrap panchanama. The I.O. has merely stated that it was a 1 AIR 1993 SUPREME COURT 1892 29 of 43 907-Apeal-437 & 1319-11 (J) typographical error. There was no demand made by the Accused No.1 on 08.09.2005 which was the important date of the trap. The certificate and the file were already handed over to the complainant and, therefore, there remained no occasion to demand and accept the bribe. The learned Judge has acquitted the Accused No.2. According to the prosecution case, the money was found with him. There is no evidence to show that there was direct conversation between the Accused No.1 and 2 regarding the demand of money. Learned counsel submitted that the verification of the demand on 06.09.2005 is extremely doubtful as is revealed from the evidence. He submitted that, even acceptance of bribe amount of Rs.3000/- by the Accused No.2 is not proved by the prosecution. The only witnesses present at that time, according to the prosecution case, were PW-2 Annappa and PW-4 Nitin. Both of them are unreliable witnesses and, therefore, it was not proper to record the conviction on the basis of these two witnesses.
18. Mr. Dushyant Pagare, learned counsel for the Accused No.2 submitted that, there was no connection established by the prosecution between the Accused No.1 and 2, as far as, the 30 of 43 907-Apeal-437 & 1319-11 (J) demand of amount of Rs.3000/- is concerned. The learned trial Judge has already held that the Accused No.2 did not know about the demand of Rs.3000/-. He submitted that the prosecution has failed to prove that the Accused No.2 had actually accepted the amount of Rs.3000/-. The Accused No.2 had accepted Rs.500/- to pay the transfer fee and had honestly and sincerely returned the balance amount to the complainant. He had not retained any money. Learned counsel submitted that the amount of Rs.500/was given from the same pocket and, therefore, presence of anthracene powder on his hands is explained by him. He submitted that the learned Judge while acquitting the accused No.2 has taken a reasonable possible view and, therefore, the well reasoned order of the acquittal may not be interfered with in the Appeal against the acquittal.
19. Learned APP, on the other hand, opposed all these submissions. He relied on the evidence of PW-2 Annappa and in particular, on the evidence of PW-4 Nitin. He submitted that, though, there are suggestions given to the complainant PW-2 Annappa, but PW-2 had given some answers which were not 31 of 43 907-Apeal-437 & 1319-11 (J) favourable to the prosecution and, therefore, he was permitted to cross-examine by the learned APP. There was nothing wrong in the procedure. He submitted that, PW-4 Nitin was an independent witness. There is no reason to disbelieve his evidence. His evidence is consistent with all the documentary evidence in the form of pretrap and post-trap panchanama, verification panchanama etc. He submitted that the learned Judge erred in acquitting the Accused No.2 because there was clear acceptance by him of the tainted amount of Rs.3000/-. It was found in his hip pocket. His both hands showed presence of anthracene powder. It showed that he had not only accepted the money but had counted the money and had kept in his pant pocket. He submitted that the prosecution has proved the demand and acceptance of the amount and, therefore, both the accused are required to be convicted. Learned APP submitted that, conviction and sentence recorded against the Accused No.1 be maintained and acquittal of the Accused No.2 be reversed and he be punished in accordance with law.
20. I have considered these submissions. The most important witness in this case is obviously the complainant PW-2 Annappa. 32 of 43 907-Apeal-437 & 1319-11 (J) As mentioned earlier, recording of his evidence was very peculiar. He had hardly given any answers which were not favourable to the prosecution. He had supported the prosecution case and in spite of that, by a cryptic one line observation, the learned APP was permitted to cross-examine PW-2 Annappa. Taking advantage of this permission, the next examination in chief is in the form of suggestions which would be clearly leading questions. The suggestions themselves explained some answers from PW-2. He was not hostile to the prosecution at all. He accepted all the suggestions and his acceptance of the suggestions was taken on the record as his deposition. Therefore, I find force in the submission of the learned counsel for the Accused No.1 that the procedure was not fair and it has affected the right of the accused No.1 of fair trial enshrined under Article 21 of the Constitution of India. It was a crucial aspect. This was explained by the Hon’ble Supreme Court in the case of Varkey Joseph. The relevant paragraphs are the paragraph Nos.10 and 11; which read thus: “10. The most startling aspect we came across from the record is that the criminal trial was unfair to the appellant and the procedure adopted in the trial is 33 of 43 907-Apeal-437 & 1319-11 (J) obviously illegal and unconstitutional. The Sessions court in fairness recorded the evidence in the form of questions put by the prosecutor and defence counsel and answers given by each witness. As seen the material part of the prosecution case to connect the appellant with the crime is from the aforestated witnesses. The Sessions court permitted even without objection by the defence to put leading questions in the chief examination itself suggesting all the answers which the prosecutor intended to get from the witnesses to connect the appellant with the crime. For instance, see the evidence of PW.[1] "Then I saw Jose (appellant) coming from the north and going towards south". Did you notice his dress then? Yes. He had worn a white dhoti…... Did you notice his dhoti? Yes. I had seen two or three drops of blood on his dhoti Suddenly I had a doubt". Similarly PW.[4] also at that time "Did any one from Ramanattu house came for tea? Yes. Jose came. When did Jose came to have tea? I do not remember….. Did Jose came on the previous day. Yes came about 6 p.m. in the evening. Did he say anything? He brought a bag and said let it be here I shall take this bag after some time….. What was the dress of the accused when he came to the shop? He was wearing white dhoti and tied a cloth on his hand. Have you noticed anything particular on the dhoti? No". Similar leading questions were put to other witnesses also to elicit on material part of the prosecution case in the Chief examination itself without treating any of the witness hostile. Section 141 of the Indian Evidence Act 1872 defined leading question to mean "any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. S. 142 Leading questions must not, if objected to by the adverse party, be asked in an examination-in-Chief, or in a reexamination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Section 143 envisages that Leading questions may be 34 of 43 907-Apeal-437 & 1319-11 (J) asked in cross-examination. Section 145 gives power to put to the witnesses in the cross-examination as to previous statement made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of which are to be used for the purpose of contradicting him.
11. Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted (sic) to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to 35 of 43 907-Apeal-437 & 1319-11 (J) provide for cases to contradict the previous statement of the witnesses called by the prosecution. Ss. 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but S. 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.”
21. Apart from that, the other important aspects are also not properly proved by the prosecution. PW-2 Annappa has clearly stated that they first went to the office of the Accused No.1 on 01.09.2005. This is his clear deposition. But at that time, the 36 of 43 907-Apeal-437 & 1319-11 (J) Accused No.1 had not demanded any amount, but had asked them to come afterwards. His deposition is that they again went to the office of the Accused No.1 on 02.09.2005 and on this occasion for the first time, the Accused No.1 had allegedly made a demand of Rs.5000/- which was brought down to Rs.3000/-. Thus, the first demand was on 02.09.2005 as per the deposition of PW-2 Annappa. However, it is falsified by his own complaint given to the ACB office vide Exhibit-24. This complaint was given on 06.09.2005, in which, it was specifically mentioned that they had gone to the office of the Accused No.1 on 01.09.2005 and at that time, she had made that demand. There was no reference to the visit on 02.09.2005. The first demand in this case was an important aspect. Even PW-3 Manoj has not supported PW-2 Annappa’s case in that behalf. PW-3 Manoj has also referred only to the visit on 01.09.2005 and demand made on that day. Since they did not want to pay the bribe amount, they decided to lodge the complaint; which was lodged on 06.09.2005. In between, they had not met the Accused No.1.
22. There is a major discrepancy regarding the submission of 37 of 43 907-Apeal-437 & 1319-11 (J) the application form for transfer of that property. The evidence shows that the application was dated 04.06.2005, but PW-3 Manoj had ultimately accepted that the application was not submitted till 05.09.2005. That application is at Exhibit-25. In the crossexamination, PW-3 Manoj has accepted that it was prepared on 04.06.2005, but it was given in the Ward office on 05.09.2005 and on that day itself an acknowledgment was taken by him. This falsifies his own case that the Accused No.1 had accepted that application on 04.06.2005 and had given acknowledgment on 04.06.2005 itself. This is a major part of the prosecution case, because, according to PW-3 Manoj, for three months nothing had happened, and, therefore, he had sought help from PW-2 Annappa. He was helped by PW-2 Annappa. The evidence shows that the application was not given in the month of June, but was given for the first time on 05.09.2005. Therefore, the very basis of the prosecution case is extremely doubtful. The prosecution case is that on 01.09.2005 itself the Accused No.1 had demanded the bribe amount, but the evidence shows that the application itself was given on 05.09.2005. Therefore, there is force in the 38 of 43 907-Apeal-437 & 1319-11 (J) submission of the learned counsel for the Accused No.1 that the Accused No.1 could not have demanded the bribe amount on 01.09.2005 or on 02.09.2005 when the application itself was given on 05.09.2005. It was a clear attempt to implicate both the accused because on 06.09.2005 immediately the complaint was lodged.
23. The main feature in this case, as per the prosecution case, is about the demand of bribe by the Accused No.1 and acceptance of the bribe amount by the Accused No.2. For that purpose, the only witnesses who can be relied on by the prosecution are PW-2 Annappa and PW-4 Nitin. Because, PW-3 Manoj was not present at the time of actual trap and PW-5 Mr. Datar was waiting outside the office. Therefore, it was absolutely necessary for the prosecution to lead a reliable evidence from these two witnesses. As mentioned earlier, PW-2 Annappa cannot be termed as a reliable witness because he had answered only in the form of suggestions. He had supported the prosecution case. He was never hostile and yet he was asked all the leading questions. But, in spite of that, even if his evidence is tested 39 of 43 907-Apeal-437 & 1319-11 (J) against the evidence of PW-4 Nitin, there are important aspects which need serious consideration to test the reliability of both these witnesses. From that point of view, the verification of the demand was an important aspect. It was conducted on 06.09.2005 after the complaint was given by PW-2 Annappa. In respect of the verification, PW-2 Annappa has deposed in paragraph-4 that the Anti Corruption Officer had sent some persons to NMMC for enquiry. He had also accompanied them to NMMC for enquiry. After verification, they came back to ACB office on the next day. Significance of this deposition is that, he nowhere states that he alone had gone for verification along with Pancha No.1 PW-4 Nitin. He had specifically referred to PW-4 Nitin by his name in all the subsequent events of pre-trap and post-trap procedure. PW-4 Nitin himself has admitted that, there was no one else present except PW-2 Annappa and PW-4 Nitin at the time of verification. Therefore, when PW-2 Annappa deposed that the officer had sent some persons to NMMC for enquiry and that he had accompanied them, shows that the procedure of verification was extremely doubtful. Exhibit-31 which records the conversation during the 40 of 43 907-Apeal-437 & 1319-11 (J) verification mentions that, after the conversation between PW-2 Annappa and the Accused No.1 in presence of PW-4 Nitin, both of them i.e. PW-2 Annappa and PW-4 Nitin came back to the ACB’s office at about 2:40p.m. and then the panchanama Exhibit-31 was written. This is in direct contradiction to the version of PW-2 Annappa that after verification they came back to the ACB’s office on the ‘next day’.
24. As far as the actual trap is concerned, as mentioned earlier, only PW-2 Annappa and PW-4 Nitin were present when the money was allegedly handed over to the Accused No.2. As discussed above, PW-4 Nitin has not given a reliable evidence, as far as, verification is concerned. He is falsified by PW-2 in that aspect. PW-2 Annappa, for the separate reasons mentioned above, appears to be an unreliable witness. Those were the only two persons present at the time of trap. Therefore, it is difficult to rely on their evidence to hold that the Accused No.2 had accepted those tainted notes. There is another important discrepancy as to whether the tainted notes were kept with the complainant PW-2 Annappa; whether they were kept in the shirt pocket or pant 41 of 43 907-Apeal-437 & 1319-11 (J) pocket. Pre-trap panchanama itself describes it differently. It is not very clear in pre-trap panchanama. Thus, the first demand is doubtful, the verification of the demand is doubtful, the acceptance of the amount by the Accused No.2 is doubtful. Therefore, on merits, the prosecution has not proved its case beyond a reasonable doubt.
25. Learned counsel for the Accused also attacked the sanction given by PW-1 Kokate. According to him, only the standing committee was empowered to give the permission to the Commissioner to accord sanction in such cases. However, in this case, a resolution was passed by the general body meeting, and the prosecution has failed to prove that the standing committee had applied their independent mind in permitting the Commissioner to accord sanction. The Commissioner of NMMC was not independently permitted to remove these accused unless he was permitted to do so by the standing committee. Therefore, the sanction accorded by him was without authority. However, considering that; on merits, the prosecution has failed to prove its case beyond reasonable doubt, the accused deserves to be 42 of 43 907-Apeal-437 & 1319-11 (J) acquitted from the case. Therefore, question of authority to accord sanction and validity of the sanction need not be decided in this case.
26. As a result of the above discussion, the Appeal preferred by the Accused No.1 is required to be allowed and the Appeal preferred by the State of Maharashtra against acquittal of the Accused No.2 is required to be dismissed.
27. Hence, the following order: O R D E R i) The Criminal Appeal No.437 of 2011 is allowed. ii) The Judgment and order passed by the learned Special Judge (Anti Corruption) Thane, on 16.04.2011, in Special Case No.17 of 2006, convicting and sentencing the Appellant Diksha Bharat Dhande; are set aside. iii) She is acquitted from all the charges. iv) The Appellant Diksha Bharat Dhande shall execute P. R. Bond within two months in the sum of Rs.25000/- U/s.481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (correspondingly 43 of 43 907-Apeal-437 & 1319-11 (J) U/s.437A of the Cr.P.C.) to ensure her appearance, in case an Appeal is preferred. v) The Criminal Appeal No.1319 of 2011 is dismissed. vi) The Judgment and order passed by the learned Special Judge (Anti Corruption) Thane, on 16.04.2011, in Special Case No.17 of 2006, acquitting the Respondent Chahu Balu Mhatre, are upheld. vii) Both the Appeals are disposed of. (SARANG V. KOTWAL, J.)