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2018 Supreme(Bom) 975
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
Waman s/o Malhari Jambhulkar – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL No. 283 of 2003
Decided on : 22-06-2018
Advocate Appeared:
For the Appellant : Shri R.M. Daga, adv.
For the Respondent: Mr. Vishal Gangane, Adv.
Headnote:
Prevention of Corruption Act, 1988 - Section 7 and 13 - Issuance of property card - Investigation - At relevant time appellant was working as Surveyor in City Survey Office at Nagpur - Case of complainant was that he had submitted an application to said office on for mutation in respect of house property owned by his father and also for issuance of property card to him - As said application was being processed complainant went to meet appellant who asked him to deposit towards fees for obtaining copy of which complainant did in name of his father – Held, This circumstance suppressing first version as given by two accused according to him is very important circumstance which raises shadow of doubt about veracity prosecution case - Duty prosecution is to bring entire truth as found before Court - It appears to me that these two vital documents have been kept back from trial - In my viewing such circumstances these writings were evidence which could be produced and which were in hands of Investigating agency and which could have been produced as evidence in Court but was not produced - By virtue of Section Indian Evidence Act Court would be entitled to presume that had these documents been produced they would not have favored prosecution which had withheld these documents - Useful reference can be made to illustration of Section Indian Evidence Acting this regard - Thus it becomes evident that on this count also prosecution case is rendered weak and conviction on basis evidence on record cannot be sustained - In view fact that evidence of both prosecution witnesses in form complainant Shadow witness is rendered wholly unreliable it cannot be said that prosecution case has been proved beyond reasonable doubt in present case - Trial Court had failed to properly appreciate evidence of prosecution witnesses - This has rendered impugned judgment and order erroneous and unsustainable – Appeal allowed
By this appeal, the appellant has challenged the judgment and order dated 17.03.2003 passed by the Court of Special Judge (Under Prevention of Corruption Act) and 4th Additional Sessions Judge, Nagpur (Trial Court) in Special Criminal Case No.19 of 1990, whereby the appellant has been convicted under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer simple imprisonment for periods of six months and one year on the two counts and also to pay fine of Rs.500/on each count.
2. At the relevant time, the appellant was working as a Nazul Surveyor in the City Survey Office at Nagpur. The case of the complainant (PW1) was that he had submitted an application to the said office on 06.12.1989 for mutation in respect of the house property owned by his father and also for issuance of the property card to him. As the said application was being processed, the complainant (PW1) went to meet the appellant, who asked him to deposit Rs.29/towards fees for obtaining the copy of "Sanad", which the complainant (PW1) did in the name of his father. It has came on record that the appellant had issued a receipt for the said amount but, he demanded a sum of Rs.500/from the complainant (PW1) for issuance of the property card. Since the complainant (PW1) stated that he could not afford to pay the said amount, it was allegedly agreed that the appellant would take an amount of Rs.100/for ensuring that the property card was delivered to the complainant (PW1). It was further claimed that the complainant (PW1) again visited the office of the appellant on 25.01.1990, when the aforesaid demand of Rs.100/was reiterated by the appellant and the complainant (PW1) was asked to come to the office on 29.01.1990. According to the complainant (PW1), as the appellant was not available in his office on 29.01.1990, he visited the office on 31.01.1990, when the demand was again repeated by the appellant and it was agreed that the complainant (PW1) would arrange for the amount on 01.02.1990. On this basis, the complainant (PW1) approached the office of Anti Corruption Bureau, Nagpur and lodged the written complaint on the basis of which, the Investigating Officer (PW4) arranged for the trap to be executed against the appellant. Two panchas were arranged and other procedures necessary for execution of the trap were undertaken.
3. On 01.02.1990, the complainant (PW1) and panch no.1 (shadow witness), i.e. PW2, went to the office of the appellant and when the appellant asked as to whether the complainant (PW1) had brought the amount, the said amount was handed over to the appellant, who took it and after counting the same with both hands, he put the same in the pocket of his pant. Thereafter, upon a pre-decided signal being given to the raiding party, which included Investigating Officer (PW4), the appellant was apprehended. Upon sodium carbonate solution being poured on the hands of the appellant, his fingers turned violet, thereby showing that he had indeed handled the currency notes handed over by the complainant (PW1) to him. On this basis, offences under the aforesaid Act were registered against the appellant and he was prosecuted.
4. In support of its case, the prosecution examined four witnesses, viz. PW1 Complainant, PW2 Shadow witness, PW3 Police official who carried the property after execution of the trap for analysis and PW4 Investigating Officer.
5. In the proceedings before the trial Court, the complainant (PW1) was declared hostile and he was crossexamined by the prosecution. PW2 Shadow witness did adduce the evidence to the effect that the appellant had demanded amount from the complainant (PW1), which was paid to him. PW4 Investigating Officer conceded in his crossexamination that although the statement of the appellant was recorded upon execution of the trap, but, the same was not placed on record. The defence of the appellant was that he was falsely implicated and that in any case, he had no power or authority to pro
