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1998 Supreme(Bom) 720
IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Yashwant Nanubhai Pingle..... Appellant.
Versus
The State of Maharashtra (CBI)..... Respondents.
Criminal Appeal No. 704 of 1996, decided on 24-11-1998.
Advocates appeared :
D.A. Nalawade, for the appellant.
H.V. Mehta, for C.B.I.
Smt. I.S. Pawar, A.P.P., for State.
THE EVIDENCE OF A WITNESS MUST BE SCRUTINIZED TO DETERMINE WHETHER IT INSPIRES CONFIDENCE IN THE COURT. IF THE COURT FINDS THAT THE EVIDENCE IS UNRELIABLE, IT CANNOT BE USED TO CONVICT THE ACCUSED.
Headnote:
PREVENTION OF CORRUPTION ACT - DEMAND OF BRIBE - SANCTION FOR PROSECUTION - EVIDENCE - RELIABILITY OF WITNESSES - [SECTION 5(1)(D), 5(2), 161 IPC] - THE COURT HELD THAT THE EVIDENCE OF THE COMPLAINANT WAS UNRELIABLE AND CONTRADICTORY, AND THAT THE SANCTIONING AUTHORITY DID NOT APPLY ITS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE GRANTING SANCTION. HENCE, THE CONVICTION OF THE ACCUSED WAS SET ASIDE.
Fact of the Case:
THE ACCUSED, A CUSTOMS OFFICER, WAS CONVICTED BY THE SPECIAL JUDGE UNDER SECTION 5(1)(D) PUNISHABLE UNDER SECTION 5(2) OF THE PREVENTION OF CORRUPTION ACT FOR DEMANDING RS. 600/- AS ILLEGAL GRATIFICATION FROM A PHOTOGRAPHER FOR ALLOWING HIM AND HIS COLLEAGUES TO CARRY ON THEIR BUSINESS AT GATE WAY OF INDIA.
Finding of the Court:
THE COURT FOUND THAT THE COMPLAINANT, WHO WAS THE MAIN WITNESS AGAINST THE ACCUSED, WAS UNRELIABLE AND HAD GIVEN CONTRADICTORY STATEMENTS. THE COURT ALSO FOUND THAT THE SANCTIONING AUTHORITY DID NOT APPLY ITS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE GRANTING SANCTION.
Issues: 1. WHETHER THE EVIDENCE OF THE COMPLAINANT WAS RELIABLE AND CREDIBLE. 2. WHETHER THE SANCTIONING AUTHORITY APPLIED ITS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE GRANTING SANCTION.
Ratio Decidendi: 1. THE COURT HELD THAT THE COMPLAINANT'S EVIDENCE WAS UNRELIABLE AND CONTRADICTORY, AS HE HAD GIVEN DIFFERENT VERSIONS OF THE EVENTS IN HIS STATEMENTS AND DURING CROSS-EXAMINATION. THE COURT ALSO NOTED THAT THE COMPLAINANT HAD BEEN INVOLVED IN OTHER CASES OF FALSE COMPLAINTS AGAINST GOVERNMENT OFFICERS. 2. THE COURT HELD THAT THE SANCTIONING AUTHORITY DID NOT APPLY ITS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE BEFORE GRANTING SANCTION, AS SHE HAD NOT EXAMINED THE EVIDENCE COLLECTED BY THE INVESTIGATING AGENCY.
Final Decision: THE COURT ALLOWED THE APPEAL, SET ASIDE THE CONVICTION OF THE ACCUSED UNDER SECTION 5(1)(D) AND 5(2) OF THE PREVENTION OF CORRUPTION ACT, AS WELL AS HIS CONVICTION UNDER SECTION 161 OF THE INDIAN PENAL CODE. THE COURT ALSO DIRECTED THAT THE FINE PAID BY THE ACCUSED BE RETURNED TO HIM.
2. As per the prosecution case, this demand was made from Ramdev Prasad by the present accused as well as the acquitted accused Mohammed Noor Khan, and Ramdev Prasad filed a complaint against both of them on 16-1-1986. Accordingly, trap was arranged and carried out on 20-1-1986 in presence of panchas and amount of Rs. 600/- was recovered from the present accused.
3. After investigation and obtaining sanction, a charge-sheet was filed against the present accused and acquitted accused under the provisions of Prevention of Corruption Act and under section 120-B of the Indian Penal Code. However, these accused were acquitted of the offences under section 120-B of the Indian Penal Code, but convicted under the Prevention of Corruption Act.
4. It was contended by Mr. Nalawade that the trial Court convicted the accused mainly on the basis of evidence of P.W. No. 1 Ramdev Prasad and his two companions the other photographers P.W. No. 2 and 3. According to Mr. Nalawade this Ramdev Prasad was totally unreliable witness having no integrity at all and his evidence was totally liable to be rejected on that ground. Secondly according to him, P.W. Nos. 2 and 3 did not make any corroboration to the testimony of P.W. No. 1 on the material particulars. Thirdly, the F.I.R. lodged by Ramdev was vague as much as no date and time of the trap was fixed. Further, according to him, there were material lapses in the prosecution case. According to P.W. No. 1 and the trap witnesses currency notes bearing phenolphthalein powder were found on chair and not on the hip pocket of the present accused. Lastly, it was contended that sanction authority did not apply its mind before giving sanction and therefore, for all these reasons the accused was entitled for acquittal.
5. On the other hand it was contended by Mr. Mehta for the C.B.I. that the character of the complainant which was tried to be assailed by the defence is irrelevant in criminal case and even if the complaint was falsely implicated some other officers in some other cases under the Corruption Act that could not be the ground to reject his testimony. He further contended that P.W. Nos. 2 and 3, the other photographers, doing their business along with the present complainant had fully corroborated the prosecution case. Further according to him, recovery of currency notes with the powder from the accused was proved beyond doubt by the prosecution and there was no specific explanation from the accused how the powdered currency notes were found in his possession. So far as sanction is concerned, he contended that firstly, P.W. No. 6 has given sanction after scrutinising the papers, and secondly, he contended that it was not open to the accused to have grievance about non-application of mind by P.W. No. 6 on the ground that P.W. No. 6 did not scrutinise the evidence which was sent to him. According to Mr. Mehta it was for the accused to examine the witness on this aspect and find out whether she had given all the relevant papers which included evidence collected by C.B.I. against the present accused.
6. From the aforesaid submission it has to be seen whether the accused succeeds in assailing the judgment of the trial Court and proving inherent lacu
