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2018 Supreme(Bom) 704
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
M.G. GIRATKAR, J.
Shashidhar Shivram Shinde - Appellant
Versus
The State of Maharashtra, through Dy.S.P. Anti Corruption Bureau, Akola - Respondent
CRIMINAL APPEAL NO. 775 OF 2003
Decided On : 09-05-2018
For the Appellant : Shri Anil S. Mardikar, Shri Rishabh Khemuka
For the Respondent: Shri S.B. Bissa
Headnote:
Criminal Procedure Code,1973 - Section 164 - Prevention of Corruption Act, 1988 - Section 13(2) - Indian Evidence Act - Section 114 - Punishment - Investigation - Appellant assailed judgment of Special Judge and Additional Sessions Judge Akola in Special Case which he is convicted for offences punishable Section Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months and pay fine of in default undergo simple imprisonment for one month- By said judgment appellant is also convicted for offence punishable Section read with Section Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year and to pay fine Complainant purchased one plot jointly - He sold said plot of his share also wanted to sell that plot- Mutation entry was not recorded in name of therefore he was insisting complainant to contact concerned Talathi and get mutation entry in his name- Complainant along with met appellant for - He requested appellant/accused to mutate name of Nimkande- Accused demanded bribe -Held, Prosecution was aware that Nimkande would not support case of prosecution- Nimkande has specifically stated in his statement Section of Criminal Procedure that accused not demanded any bribe amount Accused SHO alleged to have accepted bribe amount from complainant to favour him in investigation- Evidence regarding demand and acceptance of bribe wholly inadequate- Not only date or time of first demand of bribe amount is vague but even person in whose presence said amount is allegedly paid not produced in investigation- Prosecution version of demand and acceptance of illegal gratification in police station seems to be unusual- Contradictions of witnesses with regard to location of transaction relating to second demand also make case doubtful- Prosecution failed to prove charge against accused beyond all reasonable doubt- Conviction of accused therefore set aside evidence of witnesses show that they were not called but evidence of Investigating Officer Police Inspector shows that were called and in his presence demonstration of use of phenolphthalein powder were given to them is not reliable- Cross-examination of witnesses show that they were called for another trap and after effecting that trap they were requested to remain present for trap against accused- All this evidence creates doubt and benefit of doubt should be given to accused State of Maharashtra (cited supra) this Court has observed that prosecution case that accused demanded and accepted bribe from complainant to effect mutation- Evidence on aspect of demand for illegal gratification as on date of trap is not sufficient- Evidence of complainant and witness not reliable both on demand and acceptance of illegal gratification- Possibility of false implication not ruled out- Presumption of innocence is neither diluted nor dislodged by proof of acceptance or recovery of currency notes unless demand is established- Accused entitled to benefit of doubt - Appeal allowed
Appellant assailed the judgment of Special Judge and Additional Sessions Judge, Akola in Special Case No. 2 of 1996 by which he is convicted for the offences punishable under Section 7 of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/- in default to undergo simple imprisonment for one month. By the said judgment, the appellant is also convicted for the offence punishable under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment for three months.
2. The case of the prosecution against the appellant in short is as under.
(i) Complainant Nilkanth Kute purchased one plot jointly with one Shri Chincholkar. He sold the said plot of his share to Sadashiv Nimkande in the year 1993. Nimkande also wanted to sell that plot. Mutation entry was not recorded in the name of Nimkande, therefore, he was insisting the complainant to contact concerned Talathi and get the mutation entry in his name. Complainant along with Nimkande met the appellant/Talathi for 56 times. He requested the appellant/accused to mutate the name of Nimkande. Accused demanded bribe of Rs. 400/-.
(ii) Complainant was not willing to pay bribe to the accused, therefore, he approached the office of Anti Corruption Bureau on 29-6-1995 and lodged the complaint. As usual, Police Inspector Shri Idole called panchas. He introduced the complainant. Necessary instructions were given. Pretrap panchanama (panchanama no. 1) was prepared. As per the instructions, trap was to be effected on 30-6-1995.
(iii) On 30-6-1995, as per the instructions given by Police Inspector Shri Idole, complainant and panchas remained present. Complainant and panch no. 1 went to the house of accused. Accused was sitting in the room. The complainant asked the accused about the mutation. Thereafter accused demanded Rs. 400/-. Complainant took out currency notes from his right side pant pocket. Accused directed complainant to keep the money on table. Accused also demanded Rs. 200/- from Nimkande. He also kept Rs. 200/- on the table. Thereafter complainant and panch no. 1 went outside. Complainant gave signal as agreed. Trap party reached there, caught hold the hands of accused. Thereafter post trap panchanama (panchanama no. 2) was prepared. Police Inspector Shri Idole recorded statements of panchas and lodged the report.
(iv) Crime was registered against the accused for the offences punishable under Sections 7 and 13(i)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. After obtaining sanction from the appointing authority, charge-sheet came to be filed.
(v) Charge was framed at Exhibit 26. Same was read over and explained to the appellant/accused. He pleaded not guilty and claimed to be tried. Defence appears to be of total denial and false implication. Prosecution has examined 5 witnesses. At the conclusion of the trial, Special Judge convicted the appellant/accused as stated above.
3. Heard learned Senior Counsel Shri Anil Mardikar for the appellant. He has submitted that accused given explanation at the time of trap itself. The explanation was recorded by the Investigating Officer Shri Idole in presence of panchas. Panchanama no. 2 itself shows that explanation of accused was recorded, but the said explanation was not filed along with the charge-sheet. Therefore, adverse inference ought to have been drawn by the trial Court. In support of his submissions, he pointed out following decisions.
(1) Mukhtiar Singh (d) thr. his L.R. Vs. State of Punjab [2017 ALL SCR(Cri) 1270],
(2) Bismillakha s/o Salarkha Pathan Vs. State of Maharashtra [2004 ALL MR (Cri) 1341] and
(3) Subhash s/o Narayanraoji Rahtod Vs. State of Maharashtra [2017 ALL MR (Cri) 4144].
4. Shri Mardikar, learned Senior Counsel has submitted that work of mutation was already over. Vide notice dated 20-5-19
