Pandurang Raghunath Dhimte v. The State of Maharashtra

1. These appeals challenge a common judgment and order of the trial Court and hence decided by a common judgment. The appellant PRAMOD INGALE in Appeal No. 1473 of 2004 is the original accused no.1. The appellant in Appeal No. 1480 of 2004 is the original accused no.2. The challenge in these appeals is to the judgment and order passed by the trial Court convicting the accused no.1 for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 (‘PC Act’, for short) sentencing him to suffer two and a half years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine to undergo 2 month’s rigorous imprisonment. Accused no.1 is also convicted for the offence punishable under section 13(2)(d) read with section 13(2) of the PC Act and sentenced to suffer two and a half years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine, 2 month’s rigorous imprisonment. So far as the accused no. 2 is concerned, he is convicted for the offence punishable under section 12 of the PC Act and sentenced to suffer rigorous imprisonment for 6 months and pay fine of Rs.1,000/-, in default of fine, 1 month’s rigorous imprisonment.

2. Accused no.1 being a public servant was at the relevant time working as a Block Education Officer at Taluka Maval, District Pune. It is alleged that during the period when he was working as a Block Education Officer, accused no.1 demanded Rs.5,000/- from the complainant – Krishnarao Nantuji Bodke-PW.[1] for submitting a favourable report in the enquiry to be held against him and also threatened that if the complainant does not pay the said sum, an adverse report will be sent against the complainant, the consequence of which will be suspension. It is alleged that the demand of Rs.5,000/- was made on 20/07/2000 at about 9.15 a.m. at the residence of accused no.1. P.W.[1] made a complaint to the office of the Anti Corruption Bureau (ACB) on 26/07/2000. On 27/07/2000, pre-trap panchanama was prepared between 6:15 a.m. and 7:30 a.m.. The raiding party went to the house of the accused no.1. P.W[1] and the shadow witness-P.W.[2] went inside the house of the accused no.1. P.W.[1] informed accused no.1 that he has come ready with the amount. Accused no.1 asked P.W[1] to hand over the amount to the accused no.2 who was then present along with accused no.1. As per the version of the P.W[2], one Mr. Shinde was also present at the relevant time. After the amount of Rs.5,000/-was handed over to the accused no.2 by P.W.1, P.W.[1] gave a signal to the raiding party. The prosecution alleged that the accused no.1 and accused no.2 were caught red-handed.

3. The trial Court held that demand and acceptance is proved. According to the trial Court demand of bribe was made for the first time on 20/07/2000 at the house of the accused no.1. Though the trial Court noted the deposition of the P.W.[1] in the cross examination that there was a failed attempt to raid accused no.1 on 25/07/2000, the trial Court was of the opinion that neither investigating officer i.e. PW.[4] nor panch witnesses have admitted about the trap on 25/07/2000 and therefore the trial Court observed that the complainant’s version about lodging of the complaint on 20/07/2000 and the first trap on 25/07/2000 was made only to help the accused as it appears that he was won over by the accused persons. The trial Court was of the opinion that on the basis of the evidence of the P.W.1, P.W[2] – shadow witness and P.W.4, charges against the accused are established.

4. Learned counsel for the appellants submitted that the evidence of P.W.[1] is untrustworthy. It is further submitted that the entire prosecution case is false and concocted only with a view to frame the accused persons. According to learned counsel the factum of demand and acceptance is not proved by the prosecution by cogent evidence and therefore the question of rebuttal of presumption under section 20 of the PC Act will not arise. In any case, it is submitted that there are ample circumstances on record which by itself are sufficient to rebut the presumption under section 20 of the PC Act.

5. Learned counsel for the accused no.2 submitted that the accused no.2 was proceeded only under section 12 of PC Act. According to him, accused no. 2 just happened to be at the residence of the accused no.1 and there is absolutely no evidence on record to indicate that the accused no.2 was aware about the demand made by the accused no.1 to P.W.1. Learned counsel submitted that merely accepting the bribe amount without any idea or knowledge that the same was a bribe money received at the instance of the accused no.1 will not attract the offence under section 12 of the PC Act.

6. Learned APP on the other hand invited my attention to the findings recorded by the trial Court. She submitted that the evidence on record is sufficient to establish the factum of demand and acceptance. According to her, the accused persons were caught redhanded. She further submitted that when on the accused no.1’s instructions the accused no.2 voluntarily accepted the bribe amount and was caught red-handed, this by itself is sufficient to indicate that the accused no.2 abetted the commission of offence under section 7 of the PC Act. It is further submitted by her that the evidence of P.W.1- complainant, the evidence of shadow witness- P.W.[2] and that of investigating officer-P.W.[4] is consistent and is corroborated in all material particulars to establish the guilt of the accused. The appellants have failed to rebut the presumption under section 20 of the PC Act is her submission.

7. Heard learned counsel. The deposition of P.W.[1] indicates that a complaint was filed by one Shri Dodke against P.W.[1] alleging that he had helped 4 candidates to pass without appearing for examination. The then Education Officer of Zilla Parishad, Mr. Ambedkar, conducted the enquiry. Report was submitted by Mr. Ambedkar that the complaint filed by Mr.Dodke was false. However, in the cross examination, P.W.[1] admitted that in the enquiry conducted by Mr. Ambedkar, he was found guilty and the punishment of stoppage of 1 increment was imposed on him. P.W.[1] deposed that an entry was taken in service-book. P.W.[1] was confronted with the certified xerox copy about the entry which was made by Block Education Officer about stoppage of 1 increment. P.W.[1] admitted that the xerox copies are certified copies of the entry made in the service-book. The complaint of Mr. Bodke was thus taken to its logical conclusion and nothing further remained to be done.

8. P.W.[1] then deposed that another complaint was filed by Mr.Bodke in respect of same incident. Accused no.1 who was then incharge, confronted P.W.[1] with the complaint. P.W.[1] informed accused no.1 that enquiry which was initiated was already closed and nothing further remained to be done. It is then stated by P.W.[1] that accused no.1 wanted PW.[1] to visit his house on 20/07/2000 to settle the complaint. P.W.[1] says that he went to the house of accused no.1 on 20/07/2000 when the demand of Rs.5,000/- was made by accused no.1 to close the matter. According to me, if the complaint made by Mr.Bodke against P.W.[1] had already reached its logical conclusion and P.W.[1] was adequately punished, there was no reason for the PW.[1] to have visited the house of the accused no.1 on 20/07/2000. Furthermore, it is seen from the evidence of P.W.[1] that he was well aware that nothing further needed to be done in the matter of complaint of Mr. Bodke as the enquiry proceedings had reached its logical conclusion.

9. P.W.[1] in the examination-in-chief had initially said that there is no entry in the service-book but later on when confronted with the entry regarding stoppage of increment for 1 year, accepted this fact. The reason why I have discussed evidence of P.W.[1] in this context was to test and satisfy myself whether the evidence of PW..[1] could be regarded trustworthy or not. It is further material to note from the evidence of the PW-1 that he is aware that the guilty person can be punished only once and that the Block Education Officer-Mr. Ambedkar had already enquired into the matter of the external candidates in respect of which the complainant was facing an enquiry. It is pertinent to note that though in his deposition the complainant has stated that when he filed the complaint on 20/07/2000 in the ACB office against accused No.1 about the demand of the bribe, the said complaint is not on record. Furthermore, the complainant has stated that when he made the complaint dated 20/07/2000, the P.W.4-investigating officer was present at that time. It is further stated by him that the same was reduced to writing by P.W.4. Then in his deposition, he stated that on 26/07/2000 a fresh complaint was not recorded but on 26/07/2000, the complaint which was filed on 20/07/2000 was read over to him. P.W.[1] further stated that after reading over his complaint on 26/07/2000, the signatures of the panchas were obtained on the said complaint. In his deposition, he stated that the contents of the complaint at Exhibit 15 was written on 26/07/2000, however the date remained to be mentioned, which was mentioned on the next date. The complainant says that the panchas signed the complaint at Exhibit 15 on 26/07/2000 after the complainant signed it. Though the complaint is dated 26/07/2000, the signatures of the complainant were obtained on 27/07/2000. In my opinion, it will be unsafe to rely on the testimony of P.W.1.

10. So far as the trap on 27/07/2000 is concerned, the complainant denied the suggestion that the accused No.1 did not demand money from him. P.W.[1] deposed that on 27/07/2000, he had enquired with the accused No.1 as to what is to be done about the enquiry about the external students when the accused No.1 told him that he has already told him and whether he is prepared for that. Thereupon, when the complainant informed accused No.1 that he had brought a sum of Rs.5000/-, accused No.1 told him to hand over the said amount to accused No.2 who was sitting there.

11. It is pertinent to note that the complainant in his crossexamination admitted that on 25/07/2000, the complainant and the members of the trap party went to the house of the accused No.1 but he was not at the house. So far as this failed trap on 25/07/2000 is concerned, neither panch witnesses nor the investigating officer deposed anything in this regard. The investigating officer i.e. PW-4 in his deposition denied going to the house of the accused No.1 along with the complainant for the trap on 25/07/2000. Thus, though the complainant mentions about the failed trap on 25/07/2000, the same is denied by the P.W.4- investigating officer. From the evidence of the investigating officer, it is material to note that the investigating officer in his deposition has stated that a written requisition is required to be given for calling panchas but those requisitions are not filed along with the charge-sheet.

12. Let me now consider the evidence of the shadow witness i.e. P.W.2. P.W.[2] deposed that the complainant enquired with accused NO. 1 about his work when accused no.1 told him that he has already informed about it and whether the complainant has come prepared. It is then that the complainant told the accused no.1 that as per his say the complainant brought a sum of Rs.5,000/- whereupon the accused no.1 told the complainant that this amount should be given to accused no. 2 who was sitting in his home. In my opinion, it is not safe to rely on the evidence of P.W.[2] to prove the demand. According to P.W.1-complainant, the demand was made on 20/07/2000 and complaint in writing was filed before the office of ACB but there is no such complaint produced on record. There is hardly any corroboration found in respect of such complaint. It is also material to note from the evidence of P.W.[1] that the complainant and accused no.2 were members of the association of graduate primary teachers society which was running a cash credit society. It is P.W.1’s deposition that the accused no.2 and one Mr. Shinde (present in the house of the accused no. 1 but not cited as a witness) were well acquainted with him. It is further in his evidence that after the trap, there was a meeting of said Cash credit Society on 30/07/2000 and that in the said meeting, he was felicitated at the hands of the accused no.2 herein for the said trap. I find it difficult to believe that the complainant should be felicitated at the hands of the accused no.2 just 3 days post the trap and that too at the hands of the accused no. 2.

13. It is further material to note that at the time of the raid, one person Mr.Shinde was present along with the accused nos. 1 and 2 in the house. The statement of Mr. Shinde who had actually witnessed the demand and acceptance would have been relevant from the point of the view of corroboration and fairness. Failure to record the statement of Mr. Shinde who could have been cited as an independent witness, since it was not prosecution case that Mr. Shinde has abetted the commission of the offence, should be a strong circumstance to be held against the prosecution and in favour of the accused. I find the testimony of P.W.[1] not safe to rely upon for proving the demand. From the other materials on record i.e. deposition of P.W.[2] by itself may not be safe to come to an independent conclusion that the demand and acceptance is proved. Considering the overall facts and circumstances, it will be highly unsafe to base a conclusion on the evidence of the shadow witness and the investigating officer. Consequently, the prosecution has failed to prove the demand and acceptance to hold the accused no. 1 guilty of the offences with which he is charged. The learned trial Judge was in error in holding the accused no. 1 guilty on the strength of the evidence of P.W.[2] and the other materials. The learned trial Judge held that the P.W.[1] complainant has tried to help the accused, however, the other evidence in my view falls short in coming to a conclusion that the accused no. 1 is guilty of the offence charged with. There are no circumstances brought on record which will prove the demand of ratification. The prosecution, in my opinion, has not proved the case beyond a reasonable doubt.

14. The Appeal No. 1473 of 2004 is allowed.

15. So far as the accused no. 2- appellant in Appeal No. 1480 of 2004 is concerned, he is not named in the complaint nor it is the case of the complainant that any demand was made by the accused no. 2. Accused no.2 was present along with accused no.1 when raiding party visited the house of the accused no.1. On the say of the accused no.1, the complainant handed over the amount of Rs.5,000/to the accused no.2. There is absolutely no evidence on record to indicate that the accused no.2 was aware about the fact or had knowledge that the complainant was to visit the house of the accused no.1 or that the amount which was handed over to him was on account of some illegal gratification in respect of the alleged demand made by the accused no.1.