Avinash Sitaram Garwarc vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 1585

2008 ALL MR (Cri) 15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Smt. RANJANA DESAI, J.
Avinash Sitaram Garwarc - Appellant
Vs.
State of Maharashtra —Respondent
Criminal Appeal No.288 of 1996
Decided on : 2nd November, 2007,

Advocates appeared:
Mr. S. R. CHITNIS, Sr. Adv. I/b. S.V. KOTWAL, for the Appellant.
Ms. V. R. BHOSALE, A.P.P., for the State.

Headnote:Criminal Procedure Code, 1973 - Section 162-Evidence Act, 1872, Section 25-Statement made before police-Not hit at all by Section 162 of Cr PC or Section 25 of Evidence Act-Such statement admissible in evidence-For application of Section 162 of Cr PC, statement must be made to police officer, investigating case and during course of investigation.-If the prosecution case is to be accepted that PI Khaire was not the officer concerned with the investigation and he was there to assist raiding team and was like any other witness, then statement made before him will be outside the purview of Section 162 of the Code. For Section 162 to come into operate, the statement must be made to a police officer who is investigating the case and must be made during the course of investigation.
       Prevention of Corruption Act, 1988 - Sections 7 and 13(2)-Charges of corruption-Allegation of prior demand of money by accused-Not proved-Remaining prosecution case to be read with great caution and circumspection.-Once the prior demand is not proved, the rest of the prosecution case regarding money allegedly demanded by the accused on 3.7.1991 is concerned, it will have to be read with great caution and circumspection.
       Prevention of Corruption Act, 1988 - Sections 7 and 13(2)-Charges of corruption-Illegal gratification-Allegation of prior demand of money by accused-Not proved-Non-examination of most relevant witness-Accused probablized defence.-In a situation like the present, where prior demand is not proved and the most relevant witness is not examined, the defence of the accused will get probablized. It is true that in criminal cases it is difficult and not always advisable to contend that the ratio of a particular judgment is applicable to the case on hand because factual matrix of criminal cases widely differ. Yet reference can be made to the judgment of this Court in Kishan’s case (supra) on which Mr. Chitnis has placed reliance, because in that case also the accused was a Talathi and somewhat similar defence was taken. This Court found that the prosecution evidence about the demand for illegal gratification was not proved. This Court observed that by preponderance of probabilities the law envisages that the cardinal maxim of criminal jurisprudence lays down that where two explanations are possible. The one in favour of the accused must be accepted. It was further observed that basic presumption of innocence is not done away in corruption cases and the presump-tion provided under the said Act is a rebuttable one. This Court held that the accused had probablized the defence and acquitted the accused.
       Prevention of Corruption Act, 1988 - Sections 7 and 13(2)-Charges of corruption-Proof of-Person charged with offences under P.C. Act required to relate presumption of guilt-Burden on him not heavy-He not required to establish his defence beyond reasonable doubt-May rebut presumption by showing a mere preponderance of probability in his favour.-It is well established that in cases where a person is charged with offences under the said Act, he is required to refute the presumption of guilt contained in the said Act but the burden on him is not heavy. He has not to establish his defence beyond reasonable doubt. He may rebut the presumption by showing a mere preponderance of probability in his favour.
       Prevention of Corruption Act, 1988 - Sections 13(1)(d), 13(2), 7 and 11-Criminal Procedure Code, 1973, Section 162-Trap case-Demand and acceptance of bribe-Conviction and sentence-Setting aside of.-The demand made prior to 3.7.1991 is not proved; that there is no corroboration to the evidence of PW 1 Prakash Patil and to the evidence of PW 2 Waghchoure, the pancha who had earlier acted as a pancha; that no examination of PI Khaire has cast a shadow of doubt on the prosecution case and that in the circumstances of the case, defence of the accused is probabalised the impugned order of conviction and sentence will have to be set aside.

JUDGMENT:- The appellant (for the sake of brevity, "the accused") was tried in the court of Special Judge, Thane in Special Case No.13 of 1999 for offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short, "the said Act"). By the impugned judgment and order dated'I4/5/1996 the learned Special Judge convicted the accused for the offence punishable under section 7 of the said Act and sentenced him to suffer RI for one year and to pay a fine ofRs.5001-, in default, to suffer further RI for three months. The accused was also convicted for offences punishable under section 13(1)(d) read with section 13(2) of the said Act and sentenced to suffer RI for one year and to pay a fine of Rs.500/• in default, to suffer RI for further three months. Substantive sentences for both the offences were ordered to run concurrently. Being aggrieved by the said judgment and order, the accused has preferred this appeal.

2. It would be advantageous to begin with the gist of the prosecution story as evident from the evidence of PW 1 Prakash Patil the evidence of PW-2 Ganesh Waghchoure and PW-4 PI Kedu Devde. Admittedly, in the year 1999 the accused was Talathi of Village Kon. Taluka Bhiwandi, District Thane. The complainant PW• 1 Prakash Patil is an agriculturist by profession. He owns land bearing Survey No. 71, Hissa No.1, Survey No.75, Hissa No.2 and Survey No.78 at Bhayander which was subsequently disposed of by him in the year 1991. After selling the land situate in Bhayander, he purchased 26 gumhas of land of Maruti Vithu Patil out of Survey Nos.7/4, 7/5, 18/3 and 18/4 of Village Kon for Rs.58,000/• by registered Sale Deed dated 7/2/1991. After the Sale Deed was registered with the Sub-Registrar, Bhiwandi, PW-1 Prakash Patil went to the place of the accused in the month of March, 1991 for getting the land mutated in his name. The accused told him that he will have to pay money for that work. PW•1 Prakash Patil again went to the office of the accused on 9/3/1991 and 10/3/ 1991 but the accused was not available. On 3/ 7/1991, he went to the house of the accused and demanded 7/12 extract and a certified copy of the mutation in respect of the newly purchased land. According to PW•1 Prakash Patil the accused told him to come with Rs.500/. on 5/7/1991 to his house for 7/12 extract.

3. On 4/7/1991, PW-1 Prakash Patil went to the office of the Anti Corruption Bureau at Thane (for convenience, "the ACB, Thane") and lodged his complaint (Ex• 10). PWA the Investigating Officer PI Devde wrote a letter (Ex•22) to the RTO, Thane to requisition services of two clerks to act as panchas. Pursuant to that letter, the RTO, Thane made two clerks available to act as panchas. They are Vasant Saw ant and PW-2 Ganesh Waghchoure. Both the panchas and the complainant were asked by PW-4 PI Devde to come to the office of the ACE, Thane at 5.00 a.m. on the next day morning. On 5/7/1991, at 5.00 a.m., both the panchas and the complainant arrived. They were introduced to PW-1 Prakash Patil They were made to read the complaint. After reading the complaint, they put their signatures on the complaint. PWA PI Devde asked both the panchas to take physical search of PW•1 Prakash Patil. On search, PW•1 Prakash Patil was found having Rs.557/• on his person. Out of that amount, PW-1 Prakash Patil handed over Rs.500/• to PW-4 PI Devde. There were five notes of Rs.1 00/- denomination each. Numbers of the five currency notes were noted in the panchnama. Then ASI Dixit gave demonstration to the complainant and panchas about the use of anthracene powder. Anthracene powder was applied to the currency notes. The marked notes were folded and put into the left side shirt pocket of PW•1 Prakash Patil. PW•1 Prakash Patil was instructed to accompany the panchas to the place of the accused. PW•1 Prakash Patil was told that if the accused enquires about the identity of PW•2 Waghchoure, he should be introduced as prospective purchaser

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2007 Supreme(Bom) 1585

2008 ALL MR (Cri) 15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY Smt. RANJANA DESAI, J. Avinash Sitaram Garwarc - AppellantVs. State of Maharashtra —RespondentCriminal Appeal No.288 of 1996 Decided on : 2nd November, 2007,

Cases Referred (7)

2008 ALL MR (Cri) 15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Smt. RANJANA DESAI, J.
Avinash Sitaram Garwarc - Appellant
Vs.
State of Maharashtra —Respondent
Criminal Appeal No.288 of 1996
Decided on : 2nd November, 2007,