1992 Supreme(Bom) 460

IN THE HIGH COURT OF BOMBAY
M.F. Saldhana, J.
Achyutrao Dattatraya... Appellant.
Versus
State of Maharashtra... Respondent.
Criminal Appeal No. 605 of 1985, decided on 30-9-1992.
Advocates appeared :
S.R. Chitnis, for the appellant.
S.B. Patil, A.P.P., for the respondent.

Headnote:Section 386-Power of appellate Court-Offence of Corruption by a public servant-Alleged that payments were made on some occasions by complainant -Acceptance of some payment by trial court-Story about one discarded by trial court-Appellate Courts power to interfere with last noted finding in absence of State appeal as if in nature of appeal against acquittal.

       Held, High Court entitled to reverse that finding if evidence so warrants.

       There is no bar in re-opening the same as far as that finding cannot be treated as being on par with an acquittal. There is no law which requires a piece-meal appeal against the acquittal and therefore, High Court would be entitled to reverse that finding if the evidence so warrants. An appeal Court however, will not disturb a finding arrived at by the trial Court if that finding appears to be just and correct and if it is based on due consideration of all the relevant facts and evidence.

       Section 161.

       See Prevention of Corruption Act, 1947, Section 5 (2).

       Section 161 and Section 165-A (After Amendment)-Offence under-Two complainants-Whether can corroborate each other?

       Held, person who offers or give illegal gratification is to be categorised as an accomplice in law. To hold that evidence of one accomplice is corroborated by evidence of another accomplice is an infirmity in law.

       Section 5 (2)-Penal Code, 1860-Section 161-Code of Criminal Procedure, 1973-Section 211-Corruption case-Framing of essay like and lengthy charge--Effect on prosecution.

       While dealing with serious offences of the present type, one cannot overlook the basic requirements of law that the charge is required to be specific and that the charge is required to be clearly intelligible so the accused to the extent that it must convey to them in no uncertain terms as to what exactly the law alleges against them and what is it that they have to meet. Where the charge is vague and ambiguous it cannot ever be contended that the prosecution has proceeded on the basis of a valid charge:

       Sections 5 (2)-Penal Code, 1860-Section 161-Offence of corruption Burden of proof-A public servant found to be in possession of money which remained unexplained.

       Held, It is true that in corruption cases the onus of disproving the charge does not rest on the defence. Having regard to the position in law, however, that if a public servant is shown to have been found with money for which there is no explanation, in that event it becomes necessary for the accused to satisfy the Court through a plausible theory or through an acceptable explanation that an offence has not been made out. It is further essential that the defence should come within the four corners of the material on record and under these circumstances if the defence is farfetched and if the defence does not appear to be probable from the evidence that is on record, then the Court is not obliged to accept the defence merely on the ground that it is a possible explanation.

       Section 5 (2)-Penal Code, 1860-Section 161-Offence of corruption Public servant prosecution of-Approach of Court.

       No loose procedures, no laxity and no compromise can be permitted in cases where a corruption charge is sought to be established, and where the consequences of such a charge would mean lifelong ruination to the public servant concerned.

       Section 5 (2)-Penal Code, 1860-Section 161-Code of Cr. P. C. 1973-Section 62-Offence of Corruption- Trape case-Panchnama drawn.

       Complainants in nature of accomplices-Punches found absent at time of drawing panchnama. Effect on prosecution. It is requirement of law and strict one that panchnama not to be prepared by police in absence of a panch. Prosecution not to be excused for such lapse.

       In trap cases, much more than any other ones, the complainant is in the position of an accomplice for it is he when in offering the bribe. The raiding party is not present when the transaction takes place and, therefore the pancha who accompanies the complaint. is not a formal witness but is virtually the star witness for the prosecution for, It IS he who IS required to witness the demand and acceptance of the bribe by the public servant and It is he who is required to depose primarily about the presence of anthracene powder on the hands,. clothes etc, of the accused. The presence of the pancha right through the period when the incident takes place and more Importantly, the importance for the physical presence of the poncha and the complaint when the panchanama is scribed, cannot be under-scored. When it is demonstrated that the pancho has left the room where the trap was laid more than once during the transaction and it emerges at the trial that both the pancho and the complainant were absent at different points of time when the panchanama was recorded, a grave lacuna is disclosed. Such an infirmity is not a mere procedural error for it casts doubt on the very correctness of the panchanama which, in turn, happens to be the basis for the panch a, evidence and everything else. The evidence of the police officer however trustworthy, can never overcome the fatal defect in such cases because the police officer admittedly, was not present when the greater part of the transaction took place. A scrupulous observance of correct procedures in these cases is absolutely essential and the prosecution cannot be excused for such a lapse.