1994 Supreme(Bom) 487

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.M. Lodha, J.
Suryabhan s/o. Shrawan Sawaitul Patwari.... Appellant.
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 95 of 1990, decided on 8-9-1994.
Advocates appeared :
S.V. Manohar, for the appellant.
S.B. Wahane, A.P.P., for the respondent State.

Headnote:Section 3, 59 and 61-See Prevention of Corruption Act, 1988-Seclions 7, 13(1)(d) and 13(2).

       PREVENTION OF CORRUPTION ACT, 1988

       Sections 7. 13(1)(c), (d) and 13(2)-Evidence Act, 1872-Section 3, 59 and 61-Criminal Procedure Code, 1973-Section 313-Charge of illegal gratification-Patwari took Rs. 200/- as gratification to effect mutation of entries In revenue records-Whether charge proved in circumstances of case proved?

       Held ;M has deposed before the Court that when he met the accused for effecting mutation in the revenue register in favour of 5 and his brothers after the death of their mother doing this work the accused demanded the bribe of Rs. 200/-o At that time 5 was also with him. He has further deposed that on 13.5.1986 when the accused came to M and he requested him to do the mutation work of 5 the accused reminded him also that he has already told him that the said work would only be done, provided he pays Rs. 200/- to him 5 has deposed in his application that after the death of his mother, the name of their mother continued in the revenue records and since it was required to be corrected he asked his brothers M to get the mutation effected in his name and in the name of his brothers. He further deposed that the copy was handed over to the Palwari and the map got prepared from the D.L.R. to the Patwah for effecting mutation. This took place in the year 1985. M had told him so, and in March, 1986 M and 5 went personally to the Patwari and met him for getting the name mutated. At that time the accused told them that the work cannot be done free of cost and the accused demanded Rs. 200/- for getting the mutation done 5 had stated in his testimony that on 31.1.1986 he was in his office at Nagpur. He further stated that the entry dated 31.1.1986 was noticed in the register when the Police Inspector inspected the mutation register. He also admitted that a copy of the Will was found in the office of the Land Revenue Inspector B one of the brothers of 5 has deposed before the Court that he was working as a clerk in United Commercial Bank, Mahakali Branch, Chandrapur. He stated about his ignorance of moving the application to the revenue authorities for mutation of the fields after the death of his grandmother.

       He also deposed that on 31.2.1986 he did not appear before the Revenue Inspector. However, in cross-examination, he has admitted that the field which had come to his Share has been sold by him to 1 on 5.5.1986 by the registered sale-deed. P.W. 7 D brother of S has testified that he was a Government servant and during the period from December 1985 to February 1986 he was on commuted leave and during this period he had no occasion to go to M. He also testified that after the death of their mother, his brother S had applied for mutation of the fields in their names in terms of the Will. Confronted in the cross-examination as to whether he received any notice from the Patwari to appear before the Revenue Inspector on 31.1.1986, he stated that it was not true, In cross-examination he has admitted that the field mentioned in the Will has been partitioned since February 1986 and since that date he was in possession of the share which was allotted to him in the partition. If the evidence of P.W. 1 M S, B and D is seen in the light of the revenue records and documentary evidence, it cannot be said that the testimony of M, S, B, and D inspires confidence. The copy of extract of the mutation register (Exh. 67) shows that the mutation has been effected in the mutation register on 2.1.1986 itself. The said mutation was made on 2.1.1986 and it is recorded that the concerned persons were intimated on 2.1.1986. It is further apparent from the said document that the mutation, which was effected in the names of S, D and B was certified by the Revenue Inspector on 31.1.1986. Both 5 as well his brothers Band D are shown to be present at the time of verification and certification by the Revenue Inspector. It is recorded in the said register that the persons named B, D and S were present and on verification of the Will deed, they admitted that B has died. On that the mutation which was effected on 2.1.1986 by the accused was certified on 31.1.1986. When the mitation was effected on 2.1.1986 by the accused-appellant and it was duly certified by the Revenue Inspector on 31.1.1986 in the presence of S, D and B it becomes unbelievable and in any case highly doubtful that the accused demanded the sum of Rs. 200/- in the month of May 1986. It will be further seen from the statement of D that agricultural field was partitioned amongst the brothers, namely D. Band S in the month of February 1986. It is thus, clear that after the mutation was effected on 2.1.1986 and duly certified on 31.1.1986, the partition of agricultural land took place between the three brothers and thus, it can be inferred that S, B and D had knowledge that the mutation was effected on 2.1.1986 and was duly certified on 31.1.1986 by the Revenue Inspector. The statements of these three brothers, namely D, B and S to the contrary that they were not present on 31.1.1986 before the Revenue Inspector cannot be believed. This is further fortified from the fact that on 5.5.1986 one of the brothers B has sold his share of agricultural land to Ishwar Raut by the registered sale-deed. If the mutation had not been effected on 2.1.1986 and certified on 31.1.1986 and was not in the knowledge of these three brothers as alleged, B could not have sold his share on 5.5.1986 much before the date of incident on 16.5.1986. From this evidence it can be inferred that the prosecution case that Rs. 200/- was demanded by the accused-appellant from M as gratification as a motive or reward for effecting the entries in the mutation register in favour of S and his brothers does not inspire confidence cannot be believed. On the face of the facts that the mutation was already effected by the accused-appellant on 2.1.1986, which was certified by the Revenue Inspector on 31.1.1986 and the past conduct of S and his brothers of partition of their respective shares in the month of February 1986 and the sale of share by one of the brother B the prosecution story about the demand of Rs. 200/- by the accused-appellant from M as gratification as a monie or reward for effecting entries in the mutation register in favour of S and his brothers becomes highly improbable and can be said to be suffering from inherent improbabilities. There is no reason to doubt correctness and genuineness of the entries recorded in the mutation register on 2.1.1986, and 31.1.1986 respectively, the High Court finds itself unable to agree with the reasoning of the trial Court that the absence of S and his brothers on 31.1.1986 in the said document is proved by the testimony of S, his brothers before the Court and Exhs. 52, 55 and 56 that were not available on 31.1.1986. It may be also observed that in the statement under Section 313 of the Code of Criminal Procedure, the accused has stated that on 31.12.1986 (sic) 1985. Shad given him the Will and he told him that on the basis of the Will the mutation can be done and asked them to deposit the Land Revenue of the current year and on 1.1.1986 S paid the Land Revenue and the receipt were given. The fact of deposit of Land Revenue by Son 1.1.1986 is not disputed. This lead. to the credence to the defence that on 2.1.1986 the mutation was effected by the accused-appellant in the knowledge of S and his brothers and that was certified and approved by the Revenue Inspector on 31.1.1986. There is no independent evidence about the demand of bribe by the accused-appellant from M. In this view of the matter even after drawing the presumption under Section 20 of the new P.C. Act (Section 4 of the old P.C. Act) in favour of the prosecution for the offence under Section 7 of the new P.C. Act (equivalent to Section 161 of the I.P.C.) the evidence referred to hereinabove sufficiently dislodges and displaces the said presumption. Taking the entire facts and circumstances into consideration, that one of the essential ingredients of Section 7 of the new P.C. Act (Equivalent to Section 161 of the I.P.C.) that Rs. 200/- was received by the accused-appellant from M as gratification as a motive or reward for effecting entries in the mutation register in favour of S and his brothers, has not been proved beyond reasonable doubt and the presumption drawn in favour of the prosecution has been rebutted, dislodged and displaced by the accused-appellant. Therefore, the conviction of the accused-appellant for the offence under Section 7 of the new P.C. Act (equivalent to Section 161 of the I.P.C. as it then was) cannot be sustained. From the evidence which has been discussed above, it could also be not reasonably held that the accused-appellant has obtained the money of Rs. 200/- from M by using some corrupt or illegal means or otherwise abusing his official position as a public servant and the charge against the accused appellant that he by corrupt or illegal means on 16.5.1986 at 16.45 hours demanded and accepted Rs. 200/- as Patwari form M by abusing his position as public servant and obtained for himself a pecuniary advantage of Rs. 200/cannot be sustained. The offence under Section 13(c)(d) read with Section 13(2) of the new P.C. Act corresponding to old Section 5(l)(d) read with Section 5(2) is also not proved and the conviction of the accused under the said section also cannot be sustained.