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2006 Supreme(Bom) 2065
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
P.S. BRAHME, J.
Shri Govinda s/o Ramaji Dhurve, - APPELLANT
VERSUS
The State of Maharashtra -. RESPONDENT
CRIMINAL APPEAL NOS. 250/2003 & 253/2003
DECIDED ON: DECEMBER 20, 2006
Mr. D.L. Dharmadhikari, Advocate, for the appellant.
Mr. S.S. Doifode, A.P.P., for respondent.Shankarlal s/o Ramji Bhawarkar,
Headnote:
[MAIN LEGAL POINT] The statutory presumption that is to be drawn is compulsory and mandatory, but then as has been held by the Apex Court in the decisions referred to above, there must be evidence to establish that whatever amount was found with the accused and recovered from him, when he was apprehended in the trap, is the bribe amount.
Fact of the Case:
The complainant Tekchand (P.W.1) had applied to M.S.E.B. in the month of February or March, 1991, for electric connection in her field and also had deposited an amount for installation as per demand notice issued by M.S.E.B. on 8/10/1991 and on 31/12/1991, when the complainant Tekchand requested the appellant Shankarlal for early electric connection, he demanded from him an amount of RS. 200/- and agreed to accept the same on 7/1/1992 and accepted the same for himself through the appellant- Govinda Dhurve as a gratification other than legal remuneration as a motive or reward for showing favour in exercise of their official functions in the matter of giving electric connection and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
Finding of the Court:
The prosecution has failed to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of illegal gratification, the vital ingredient necessary to be established to procure the conviction for the offences under consideration.
Issues: (i) Whether the demand of bribe amount as gratification, and (ii) Acceptance of the bribe amount by accused persons.
Ratio Decidendi: (i) The evidence of the complainant and panch witness Gulab is contradictory even as regards the presence of appellant Govinda in the room of the appellant Shankarlal where the alleged conversation took place. (ii) The evidence of complainant Tekchand and that of panch witness Gulab is so contradictory that it is very difficult to hold that such conversation took place regarding the demand of the amount by the appellant Shankarlal and the complainant Tekchand having given the amount as per the demand. (iii) The witnesses have stated in their evidence that after this conversation and when the appellant Shankarlal told to give the amount to appellant Govinda, the complainant Tekchand gave the amount and he came out of the room and gave signal and when the trap party came there, the appellant Govinda was apprehended by caught holding his hands and the amount was then recovered. (iv) Both the witnesses have audacity to say contradictory to what they have stated earlier that the acceptance of amount has taken place outside the room in the compound at a place which is at a distance of 33 feet from the room. (v) The witnesses have given candid admission as stated earlier that the appellant Govinda did not know anything about the transaction nor he knew that appellant Shankarlal had asked the complainant Tekchand to give amount to him asking him to accept the amount for appellant Shankarlal. (vi) The claim of the prosecution that the appellant Govinda received the amount, does not stand to be probable. (vii) The claim of the prosecution that the amount was accepted by accused Govinda in a simplicitor manner, is far from truth.
Final Decision: Both the appeals are allowed. The conviction and sentence passed by the trial Court against the appellants is quashed and set aside and the appellants are acquitted of the charges with which they were tried. Their bail bonds shall stand canceled. Fine amount, if paid, shall be refunded to them.
1. These two appeals are against the judgment and order passed on 5/3/2003 in Special Case No. 1/93 by the Judge of Special Court constituted under the Prevention of Corruption Act, Nagpur, where under the appellant Shankarlal Ramji Bhawarkar (original accused no.1) is convicted under Section 7, 13 (1) (d), 13 (2) of Prevention of Corruption Act, and sentenced to suffer rigorous imprisonment for 18 months, and fine of Rs. 1500/- in default to undergo simple imprisonment for four months, and rigorous imprisonment for 18 months and fine of Rs. 1500/- in default to undergo simple imprisonment for four months, and appellant Govinda Ramaji Dhurve (original accused no.2) is convicted under Sections 7, 12, 13(1) (d) and Section 13 (2) of Prevention of Corruption Act, and sentenced to suffer rigorous imprisonment for 18 months and fine of Rs. 1500/- in default to undergo simple imprisonment for four months, rigorous imprisonment for six months and fine of Rs. 500/- in default to undergo simple imprisonment for four months, and rigorous imprisonment for 18 months and fine of Rs. 1500/- in default to undergo simple imprisonment for four months. Both these appeals are being decided by this common judgment.
2. The appellant Shankarlal Ramji Bhawarkar (original accused no.1) was Sub Engineer in M.S.E.B. at Deolapar, while the appellant Govinda Ramaji Dhurve (original accused no.2) was working under appellant Shankarlal as Line Helper. Both the appellants were tried for the charge that during the period from December, 1991 to January, 1992, they were working as Sub Engineer and Line Helper respectively in M.S.E.B. at Deolapar and as such were public servants within the meaning of Section 2(c) of the Prevention of Corruption Act. That, Smt. Girijabai Tulsiram Bhal, mother of the complainant Shri Tekchand Tulsiram Bhal (P.W.1) had applied to M.S.E.B. in the month of February or March, 1991, for electric connection in her field and also had deposited an amount for installation as per demand notice issued by M.S.E.B. on 8/10/1991 and on 31/12/1991, when the complainant Tekchand Tulsiram Bhal requested the appellant Shankarlal Ramji Bhawarkar for early electric connection, he demanded from him an amount of RS. 200/- and agreed to accept the same on 7/1/1992 and accepted the same for himself through the appellant- Govinda Ramaji Dhurve as a gratification other than legal remuneration as a motive or reward for 4 showing favour in exercise of their official functions in the matter of giving electric connection and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. It was further alleged that the appellant Shankarlal, on 7/1/1992 obtained pecuniary advantage i.e. a sum of Rs. 200/- for himself from Tekchand through the appellant Govinda by corrupt and illegal means by abusing his position as public servant and thereby committed offence punishable under Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act. It is further alleged that accused Govinda, by demanding and accepting from the complainant Tekchand, an amount of Rs. 200/- for and on behalf of accused Shankarlal, has aided and abetted the above offence and as such has committed an offence punishable under Section 7, 12, 13 (1) (d), 13(2) of the Prevent of Corruption Act.
3. It is the case of the prosecution that the complainant Tekchand had been to the office of Anti-corruption Bureau, Nagpur, on 7th January, 1992 and he lodged oral complaint with Anti- Corruption Officer- S.P. Shri Gavai (P.W.8) against the appellant Shankarlal, which was reduced into writing. The contents of the said 5 complaint are that the complainant and his mother Girijabai had 6 acres of agricultural land which is situated within the jurisdiction of Distribution Centre of M.S.E.B. situated at Deolapar and they have installed electric pump on the well in that land. So they are in need of electric connection to run the electric pump set to provi
