State of Maharashtra v. Raghunath Dnyandev Katkar

13. Trial Court disbelieved the above evidence. Learned APP took me through entire evidence. According to him the variances were of minor nature. Shri Patil also took me through entire evidence. He also filed written notes of arguments. He relied upon following judgments:-

(i) Satvir Singh V.s State of Delhi reported in (2014) 13

(ii) B. Jayraj Vs. State of AP reported in (2014) 13

(iii) C. M. Girish Babu Vs. CBI Kochin High Court of Kerala reported in (2009) 3 Supreme Court Cases 779 (Para 13 onwards)

(iv) Dr. Sunil Kumar Vs. State of Maharashtra reported in

(2011) Cr. LJ 705

(v) P. Satyanarayana Murthy Vs. District Inspector of Police reported in (2015) 10 Supreme Court Cases 152 (Para 7 to 10)

(vi) Krishan Chandar Vs. State of Delhi reported in (2016)

(vii) Chandrappa and Ors. Vs. State of Karnataka reported in (2007) 4 Supreme Court Cases 415 (Para 42 to 45)

(viii) Chironjilal Vs. State of MP reported in 2008 Cri. LJ

(ix) K. Subba Reddy Vs. State of AP reported in (2007) 8

(x) State of MP Vs. Anil Kumar Varma reported in 2007

14. Trial Court has not believed P.W.-1-Sayaji. There are criminal cases registered against him earlier. Their details were also filed by Katkar alongwith 313 statement. Though Sayaji complains that his real complaint is not Exh. 65, there is no explanation on behalf of the prosecution. Since beginning Sayaji said that he was having complaint against Deputy Superintendent Chougule. But it failed on deaf ears. His conduct is consistent with his grievance. Present Respondent is only charge-sheeted. Whereas the Complainant contend that Dy. SP. Chougule is also responsible. He has filed a complaint under Section 156 (3) of the Criminal Procedure Code against Shri Chougule. Special Judge dismissed it summarily on 15.11.2011. Sayaji carried the issue to this Court. It was remanded.

15. He was successful in reopening the investigation. It was accepted on 12.12.2012 by the learned Special Judge. However after negative report of police, his application was rejected. However learned Special Judge kept certain issues open. He observed:- “Therefore, from the report and documents on record, it appears that though the complainant has made severe allegations against the Deputy Superintendent of Police Shri Chougule, but as per report of the concerned officers, there is no evidence against him to submit charge-sheet against him. Therefore, Shri Chougule has not been made as accused in this case. Thus, at this stage, there is no substance in the allegations of the complainant. However, point is kept open that if after recording evidence any role is attributed to the Deputy Superintendent of Police Shri Chougule, then he can be made accused and further necessary steps would be taken.” Findings of the trial court.

16. After trial learned Judge while acquitting Katkar observed as follows: “While deciding application Exh. 48, it was observed that if at the conclusion of trial, it is noticed that the allegations against Chougule are proved, then he should be made as accused in this case. However, considering the entire evidence on record, particularly the omissions and contradictions in the evidence of complainant, panch witness and the Investigating Officer, it is clear that no case is made out against said Chougule also. Therefore, it would not be proper to make Chougule accused in this case.” Evidence of P.W.No.1

17. It will be material to see what the PW-1 Sayaji has said in his chief about the complaint. “I had been to Anti Corruption Bureau Kolhapur and narrated entire facts to Shri Bagal and Shri Wakade officers of Anti Corruption Bureau Kolhapur, it was on 09.10.2006. Accordingly, they told me to lodge complaint. My complaint was accepted as per my statement since beginning. I have stated all the facts. It was reduced into writing on rough paper.” About the events of 10.10.2006, Sayaji said: “On 10.10.2006, I was again called. Instructions were given to me about demand verification. All instructions about trap were given to me. The complaint was then typed and some paragraphs from the rough notes were deleted. Myself and my wife took objection on that. Wakade Saheb and his staff told me that it is not final complaint, final complaint will be reduced into writing which will come from the mouth of panchas after demand verification by panchas. I requested him to give rough notes which were reduced into writing by Shri Bagal Saheb. They stated that after demand verification, those notes will be given to you.”

18. Complaint lodged by him on 10.10.2006 was shown to him. It is Exh. 65. Still he has grievance. He said:- “At the time of lodging the complaint on 10.10.2006, I made a grievance and therefore the complaint was not completed. On 11.10.2006 I was called at the Circuit House, Kawala Naka, Kolhapur. Then I read the entire complaint and put my signature. It was on 11.10.2006.”

19. During cross-examination, he answered: “I met Bagal and Wakade on 09.10.2006 but the complaint was lodged on 10.10.2006. My complaint was prepared by Bagal. There was discussion that complaint was not as per my say and it was told that after demand verification main complaint will be prepared. My complaint dated 10.10.2006 was handwritten and also typed. The typed complaint was containing two pages and on the very same day, I have signed on it. Exh. 65 the complaint is referred to the witness. It bears my signature, below signature date is 11.10.2006.” Evidence of I.O.

20. PW-4, Investigating Officer Wakade has said during Chief. “In room No. 10 of the circuit house, the complaint of Sayaji Desai was got typed as per his say. He read it and he found its contents correct, and then he signed on it. Said complaint is at Exh. 65, it is now shown to me, is the same, bears my signature and signature of the complainant. Contents are true. Then complainant was called at 11-00 a.m. on next day.” During cross-examination he answered:- “On 10.10.2006 at about 12.00 noon I reached to Circuit House, Kolhapur. For about 1-2 hours, I was there. On 10.10.2006 complaint of the complainant was obtained and signature of the complainant was obtained on it.” Further he said, “It is true to say that though the complaint is dated 10.10.2006, but below the signature of the complainant date 11.10.2006 is written. Panchas did not put the date below their signature on it.”

21. On above evidence, trial Court observed: “In his further evidence, he stated that he has lodged complaint on 10.10.2006 which is at Exh. 65. At the time of lodging the complaint on 10.10.2006, he made grievance and therefore his complaint was not completed on that day. On 11.10.2006 he was called at Circuit House, Kawala Naka, Kolhapur. He read the complaint and then put his signature on it. If the complaint is perused, it transpires the date 10.10.2006, but below the signature of complainant dated 11.10.2006 is mentioned. Therefore, it is doubtful whether it is the real complaint dated 10.10.2006 or not.” It is further observed:- “So, from the evidence of these three witnesses it clearly appears that the date on which the complaint was lodged is not certain because on 09.10.2006, 10.10.2006 and 11.10.2006 the complainant had met Bagal. Panchas were called on 10.10.2006. Typed complaint and handwritten complaint are not coming before the Court. Original complaint is not filed before the court and hence evidence of the prosecution in this respect is fatal to the prosecution.” Observation

22. From above discussion there are two inferences. Complaint at Exh. 65 is real complaint or it is not the real complaint. Trial court has concluded that “it is doubtful whether it is real complaint dated 10.10.2006 or not”. However what I find it is not supported by reasoning. The grievance has to be considered vis-à-vis who is the accused before the Court. That is to say whether it is not the real complaint against the Respondent or against Dy. SP. Chougule. Trial Court disbelieved the Complainant totally. When trial court came to conclusion that it is not the real complaint, whether trial court has considered the evidence of the complainant given in the Court? Court occasionally come across grievance that complaint is anti dated. That is to say in fact the incident has taken place later on but F.I.R. is lodged subsequently but by showing that it was registered earlier. This happens in counter cases. But in that eventuality, the first informant and the Police are together. Here the complainant is having grievance against the Anti Corruption Bureau officials.

23. Whether trial Court has appreciated the evidence of Complainant in the light of averments in the complaint vis-à-vis involvement of this Respondent? When Complainant-Sayaji says that real complaint is not coming forward, whether it is proper to raise doubt on the Complainant only? Whether that was a possible view? I think it is not because trial court took that view without considering the materials on record. “What the complainant has deposed in the court” is not considered. The facts deposed in evidence is generally tested by comparing what the complainant has stated in the F.I.R./complaint. Because complaint is earlier in time. About demand, the complainant has deposed facts against two officials. One against Shri Katkar and another against Shri Chougule, the complainant has stated the following facts:- “As per the advise of my advocate, I had been to meet Investigating Officer Shankar Piraji Chougule for sending reply to the Court. I met Chougule and requested him to send say at the earliest. Chougule told me that you did not say anything to me, you go and meet Mr. Katkar, I have stated him about that. I did not meet Katkar and went to my house.” Further he says:- “After 2-3 days, I came and went to meet Chougule in his office and requested him. He told me that he should not stay here, you go at the ground floor and I will send Katkar to you.” “Thereafter, within 3-4 days, on motorcycle I was coming to Kolhapur. I have seen the vehicle of C.I.D., which was coming from opposite direction. Somebody else has shown me hand and therefore at some distance I stopped my motorcycle and went to that C.I.D. vehicle.” Further he says:- “After 2-3 days, I received phone call of Chougule to my landline No. 02324-222222. On phone, he told me that you do the compliance as stated by Katkar.” “Thereafter, Chougule had made call on mobile of my friend Namdev @ Jayant Hari Savant and told him that you tell Sayaji to give amount as early as possible to Mr. Katkar”.

24. If we compare these facts with particulars of complaint at Exh. 65, fact relating to “receiving a phone call of Chougule on landline” and fact relating to “making a call by Chougule on mobile of friend Namdev Savant” does not find place. No doubt the trial Court has not conducted a trial against Shri Chougule. So trial court is not supposed to deal with those particulars and their truth. Trial court has only to deal with allegations against Shri Katkar. But so far as Complainant is concerned, he has deposed whole story. He is a layman. He cannot bifurcate facts in between Shri Chougule and Shri Katkar (just because Chougule is not charge-sheeted). Because the facts are interconnected. And then why A.P.P. in-charge has not restricted Sayaji in respect of facts connected to Shri Katkar only. However trial Court over looked what the Complainant has said against the Respondent and also overlooked whether it was stated while lodging the complaint?

25. These facts were not considered by the trial court. Instead trial court had chosen to observe that Exh. 65 is not a real complaint. There is second reason. The trial court was aware that Sayaji has filed a complaint under Section 156 (3) of the Criminal Procedure Code and made grievance against Shri Chougule. Then why trial court has not considered the “grievance of Complainant that real complaint is not before the court” on this background. Even though Exh. 65 may not be the real complaint (not containing details showing involvement of Dy. SP. Chougule), but the trial Court overlooked the fact that the Anti Corruption Bureau officials acted on the complaint of Complainant and also arranged trap. So there is substance in the complaint against the Respondent.

26. The view taken by the trial court was taken without considering the available materials on record. I do not agree with that view. Judgment cited on behalf of the Respondent.

27. The observations in Satvir Singh (Supra) are not applicable as the facts are different. There was no evidence of demand by Appellant-Satvir Singh. Even there was documentary evidence to suggest that Appellant never demanded the money (para 30). On this factual background the conviction under Section 7 of the Prevention of Corruption Act by the High Court was set aside.

28. Whereas in case of B. Jayraj (Supra) there was conviction even though the complainant has turned hostile. If demand is not proved, the evidence of acceptance cannot be accepted.

29. Whereas in case of C. M. Girish Babu (supra) also there was conviction even though complainant P.W.10 has not supported. The appellant has accepted the bribe and it was demanded by acquitted accused. The conviction was set aside as demand is not proved.

30. In case of P. Satyanarayana Murthy (Supra) – Complainant died prior to trial. The Hon’ble Supreme Court set aside the conviction under Section 13 of the said Act. Demand was not proved, hence there was acquittal under Section 7 of the Prevention of Corruption Act.

31. In case of Krishan Chandar (Supra) the conviction under Section 7, 13(2) of the Prevention of Corruption Act was set aside. P.W. 2- Jai Bhagwan the complainant has turned hostile on the point of demand and acceptance. (para 27). The evidence of panch P.W. 6 was found unsatisfactory. The portion from the statement of P.W. 2 (which he disowned) was not proved through Investigating Officer – PW 10 (para 30)

32. In case of Chironjilal (supra) it was not the job of Head Constable to release the culprit on anticipatory bail as per the order of the court (para 14). The amount was demanded by SHO Vimal Kumar but it was accepted by the Appellant. There was no evidence of demand by Appellant from Kunj Bihari (PW[1]). When motive of demanding bribe is not proved, then accused can not be convicted for receiving illegal gratification. “In law in capacity of Government Servant to show any favour or rendered any service in connection with official duties weakens the case of prosecution” (para 15). However in this judgment it was not brought to the notice that there are different ways of showing favour laid down in Section 7 of the Prevention of Corruption Act. These wordings are there in Section 7 and not in Section 13 of the Prevention of Corruption Act. There was no evidence of demand. As such the benefit has to be given to the Appellant. Section 7 also mentions “as a motive/reward for doing/for bearing to do any official act”. In this clause, it is not said “this official functions”. In that clause official function has to be connected to the accused.

33. In case of K. Subba Reddy (Supra), Appellant a home guard accepted the amount from defacto complainant on behalf of co-accused excise inspector. The conviction under Section 7 of the Prevention of Corruption Act was set aside as Appellant was having no role to play in respect of return of stock register. Appellant gave an explanation that money was given to him for deposit in the treasury. There was the evidence of demand by the Appellant. Above said observations are on the basis of those cases. The underline principle is that there has to be reliable evidence on the point of demand and the evidence on the point of acceptance can be believed only when the evidence on the point of demand is satisfactory. Evidence on the point of demand

34. Complainant in his evidence before the Court narrated following demands:- “Within five minutes Katkar reached there. Katkar told that Chougule Saheb has demanded Rs. 20,000/-, you give it earlier, I will do your work. Why you are disappointing saheb i.e. Chougule. I told that at present I have only Rs. 5,000/- and I am ready to give it. Katkar got annoyed and told that whether you are giving Daxina to me, and he went at the upper floor of the office. I went to my village.”

35. This was prior to rejection of an application for release of ornaments. After it was rejected again there was demand. He says:- “After 2-3 days, Katkar came to Gargoti, he came to my xerox shop which is near to Gargoti Police Station. He told me that whether you came to know about power of Chougule saheb. If you are in need of those ornaments, then you should make application to Appellate Court and comply the demand of Chougule saheb.” After informing to Katkar on phone about filing of application Katkar told him:- “that you comply with demand of Rs. 20,000/- then I will submit say to get your articles back”.

36. Trial court disbelieved the evidence on the point of demand. Trial Court gave following reasons:a) There must be some official work for completing it and illegal gratification, is demanded. Trial court noticed different types of official work mentioned in the complaint. “Katkar told Sayaji why you are disappointed Chougule Saheb. Investigation is completed” However in last paragraph of the complaint, Sayaji said money is demanded to give favourable reply” (para 18) b) During entire trap proceedings “Katkar did not make demand of money for himself” (para 32) c) “no work of complainant was pending with Katkar” d) There is no document on record to show that suite from rest house was taken on 10/10/2006 and 12/10/2006 (para 35) e) Investigating Officer has admitted that work of complainant was with Chougule and accused is not authorized to file say to the application of the complainant (para 35) f) Nirmala, wife of Sayaji was not examined. Call details not brought on record. Above reasoning pertains to the demand at the time of trap, is there any motive for accepting illegal gratification and supporting materials. The correctness of these reasonings need to be checked. Part of official act/function

37. It is material to note that trial court has not considered the provisions of Section 7 of the Prevention of Corruption Act properly. It is in two parts. One a) If illegal gratification is accepted b) Other than legal remuneration c) As a motive or reward & Second It is related to some work. Public servant can help the Complainant in different way. One of the way is:- “for showing/forbearing to show in exercise of his official functions any favour/disfavour to any person’. This act of favour or disfavour should be connected to “his official function”. For this act, there must be official function concerning him and that is part of his duty. Whereas in respect of an act done in following manner, act should not be connecting to his official function. It says:- “for doing/for bearing to do any official act.” It means act must be official act. It need not be connected to his official duty. This provision is ignored by the trial Court.

38. If this is considered then giving reply may not be official duty of Katkar. But certainly giving reply is an official act. Whether Katkar is supposed to do or not is immaterial.

39. On these demands made prior to trap, there is absolute no cross-examination. Even there is no comment by the trial Court. Lack of evidence on the point of reiteration of demand at the time of trap will be considered later on. Trial Court disbelieved PW-1 only due to his previous antecedent. Now whether this uncorroborated testimony can be believed? Sayaji’s wife has asked for return of ornaments is not disputed. CID is investigating Bhandargad Patpedhi case is not disputed. Shri Katkar is attached to CID is not disputed. Dy. Superintendent Chougule has to file reply is not disputed.

40. The Appellate Court should not normally disturb the findings of acquittal. When the impugned judgment is perused, there are no findings on the point of demand. This evidence is about events that took place earlier to trap. Hence the same has to be appreciated independently.

41. The appellate Court has got power to appreciate the evidence. As said above, except criminal antecedent, there are no reasons. There are certain documents produced by Respondent to support that allegation. Be that it may it does not makes the witness disbelievable altogether. At the most his evidence can be viewed with caution. The complainant has breached the penal law, that is why he has approached the police/CID. There has to be convincing reason to disbelieve him. They are not there. There is already explanation given by the complainant why he met the ACB officials in the rest house. Not producing documents about booking of rest house will not make the case doubtful if otherwise the evidence is reliable. Merely producing documents showing good service conduct does not absolve the Government Servant if he commits wrong on particular instance. Nirmala wife of Sayaji is not the witness to the incidents of demand. Call details pertain to demand made by Chougule and not this Respondent. Whatever benefit I can give to Respondent I have given while appreciating the evidence on the point of acceptance of bribe. Evidence of P.W.-2 Savita Mahadik

42. She works in irrigation department. She attended all panchnamas. They are as follows: a) Exh. 68