Bharati Dangre, J
1. On being convicted and sentenced under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Actâ€) by the Special Judge,
Pune, on 30/12/1997, the Appellant has preferred the present appeal.
2. In support of the appeal, I have heard learned counsel Mr. Kuldeep S. Patil with Ms. Saili Guru and learned A.P.P. Mr. S.R. Agarkar for the State.
With the assistance of the respective counsel, I have perused the R & P, which has been received.
3. The Appellant being a public servant, working in the Health Department of the Pune Municipal Corporation (“PMCâ€), Pune, was charged for
accepting an amount of Rs.800/- from the Complainant, one Motilal Solanki as gratification, other than legal remuneration as a motive for granting him
temporary health licence for his shop ‘Solanki Provision Stores’ on 16/01/1991, at Cafe Alfa Hotel, Opp. PMC Office, Pune, and, thereby
committing an offence punishable under Section 7 of the PC Act and also for abusing his position as public servant and, thereby obtaining pecuniary
advantage, the Appellant was charged for committing the offence punishable under sub-clause (d) of sub-Section (1) of Section 13 of the PC Act
being punishable under Section 13(2) of the said Act. Since the accused pleaded not guilty, he came to be tried by the Additional Sessions Judge, Pune
in Special Case No. 7 of 1991. The prosecution laid its case through five witnesses and gained support from the documents exhibited, including the
order of sanction granted by the Commissioner of PMC, which was admitted by the accused under Section 294 of the Code of Criminal Procedure
(“Cr.P.C.â€) and exhibited as Ex-38. On appreciation of the evidence brought on record by the prosecution, the accused stood convicted of the
charges framed and was sentenced to suffer RI for a period of 2 years for the offence punishable under Sections 13(1)(d) and 13(2) of the PC Act
and to pay fine of Rs.1,000/-, in default, to undergo RI for 3 months. For conviction under Section 7 of the PC Act, he was sentenced to suffer RI for
1 year and to pay fine of Rs.500/-, in default, to undergo RI for one month. The substantive sentences were ordered to run concurrently.
4. The submission of Mr. Patil, learned counsel for the Appellant is to the effect that the prosecution has failed to adduce evidence to conclusively
establish the charges levelled and, as per the learned counsel, it has failed to discharge the burden of proof to sustain his conviction. Mr. Patil would
submit that the very inception of the prosecution case being the complaint itself, is not proved as, according to the complainant, as per his narration, it
was reduced in writing, but the complaint which is exhibited at Ex-28 is typed one and, he concede that it is not the same complaint, which PW-5 has
scribed by his hand. He has also admits that the signature on the complaint, Ex-28, and the application, which has been exhibited as Ex-17/1 and Ex-
17/2 are different. The version of the accused has featured in his statement recorded under Section 313 of the Cr.P.C. and, according to Mr. Patil, the
complaint, which was lodged by the Complainant itself has been changed to absolve his superior Mr. Manyar for whom, the money was meant and
thrusted in his hand, he being unaware about the purpose for which the money was being paid. The submission on behalf of the Appellant is that he
was not the authority competent to grant sanction and when the trap is laid on 16/01/1991, the licence was already granted on 15/01/1991 and the
documents were produced by Mr. Manyar. In support of the Appellant’s case, learned counsel would submit that the complainant’s conduct
itself is doubtful as, even going by the version of the prosecution, when he was directed to give signal immediately after coming out of the hotel after
the bribe is accepted, he refrained from doing so and till they reached the first floor of the building, no indication was given by him, which lents support
to the version of the Appellant in his statement under Section 313 of the Cr.P.C. that the money was thrusted in his hand, when he reached the first
floor of the PMC building. In absence of the case of the prosecution being proved by cogent and reliable evidence to establish a charge under Section
7 and 13(1)(d) of the PC Act, Mr. Patil would urge that the Appellant deserves an acquittal.
5. Per contra, learned A.P.P. has supported the impugned judgment and by making reference to the evidence led by the prosecution before the
Special Court, he submits that the demand and acceptance being proved conclusively by the prosecution witnesses in the form of the complaint, as
well as shadow panch and an independent witness, who were also present, when the bribe amount was accepted, Mr. Agarkar argues that the appeal
deserves a dismissal since the conviction is based on a proved demand and acceptance of bribe amount, which was a consideration for issuing
temporary health licence for the shop of the complainant and the accused has abused his position as public servant and obtained for himself the
pecuniary advantage as a gratification, other than legal remuneration for grant of such licnece for the shop owned by the Complainant. Sanction being
admitted by counsel for the accused, learned A.P.P. submits that the impugned judgment appreciates the evidence in its proper perspective and entails
the conviction and sentence upon the accused. He prays for dismissal of the appeal.
6. The complaint came to be lodged by the Complainant on 16/01/1991 with the Police Inspector, Anti Corruption Bureau (“ACBâ€), Pune, alleging
that he was running a grocery shop under the name of ‘Solanki Provision Stores’, for which he has obtained registration under the Shops and
Establishments Act. In the year 1990, he had preferred an application to the Health Department of the PMC for issuance of health licence and had
deposited the necessary fees by way of challan. After 15 days, one of the officials (the Appellant) visited his shop by projecting himself to be the
officer of Aundh Ward of the Health Department of the PMC and informed him that the work of the health licence was entrusted to him and he
would bring his superior officer for the inspection. On 14/01/1991, the said officer along with four other persons came and inspected his shop. The
official, who had visited on the first occasion i.e. the Appellant asked him to remain present in the Ward Office, but he did not report as directed. As a
consequence, on 16/01/1991, the Appellant came to his office and questioned him why he did not abide by his direction, which was responded by
stating that his brother was not available and, therefore, he did not attend, but assured him to comply when his brother would come. He was asked to
report at 11.30 a.m. in Aundh Ward Office and when he reported, a demand was raised by the Appellant of Rs.800/- and, though the complainant
expressed that the demand was a big amount for him, he was called in the office of the PMC with the amount demanded and he was also assured that
on bringing the amount, he can take his licence.
7. On being convinced that in absence of an amount of Rs.800/- being paid, he cannot avail the licence, though he had already deposited the necessary
fees for obtaining the licence and since he was not willing to pay the amount by way of bribe for availing the licence legally, the complainant lodged his
complaint on 16/01/1991.
8. PW-5 is the Police Inspector attached to ACB office, who received the said complaint and decided to lay a trap. The complaint narrated by Solanki
was reduced to writing and was signed by him as well as PW-5 and came to be exhibited as Ex-28.
Two panchas were called for and the Complainant was asked to narrate his complaint to the panchas. The written complaint was perused by panchas
and they also put their signatures on the written complaint. After completing the necessary formalities for laying the trap, an amount of Rs.800/- in
currencies; six currencies of Rs.100/- and four currencies of Rs.50/-, which were smeared with anthracene powder, were handed over to the
Complainant as bribe amount, which he pocketed in his shirt. The number of notes were noted and the panch witness, PW-2 Tamboli, was instructed
to accompany the Complainant whereas, the other pancha formed part of the raiding team, which was asked to wait and watch for the signal being
given by the Complainant. The pre-trap panchnama (Ex-30) was signed by the panchas and PW-5. The raiding party proceeded to PMC office,
where it was bifurcated; the Complainant (PW-1) and PW-2 approached the office of the accused whereas, the other members of the raiding party
placed themselves outside the PMC office. Amidst the trap being executed, one person was located on the third floor of the office, wearing a khaki
coloured dress, and when PW-1 and PW-2 descended the stairs to reach the ground floor, the said person was also accompanying them. The said
person is PW-3, a friend of the Complainant. The trio entered the hotel outside the office of the PMC and, after sometime, came outside the hotel and
entered the PMC building, when the Complainant gave the signal as per instructions and the accused was apprehended after introducing him to the
panchas. The subsequent events are mentioned in the post-trap panchnama (Ex-31), which find mention about the amount of Rs.800/- and the shirt of
the accused being seized. Subsequent to this, PW-5 lodged a complaint to the Deccan Gymkhana Police Station (PW-40), on the basis of which, C.R.
No.37 of 1991 was registered. The investigation continued by recording statements of panchas and the papers were forwarded to the Superintendent
of ACB, to be forwarded to the competent authority for grant of sanction. Sanction (Ex-38) was received and the charge-sheet was instituted in the
Special Court, Pune.
9. The prosecution has unfolded its case before the Special Court by examining four other witnesses than the Investigating Officer, himself. The
Complainant is examined as PW-1, who speaks in sync with the complaint and reiterates that he was interested in obtaining the health permission from
the PMC and, that, he has deposited an amount of Rs.25/- by means of challan. He also deposed about the accused coming to his shop and mentioning
to him that his work was with him and he would visit the office with his superiors and, accordingly, he did visit. He reiterates about the demand raised
by the accused, when he visited the office of the accused at 11.00 a.m. on 16/01/1991 and also speaks of the accused mentioning to him that the work
of licence is practically over, but only the signature is to be taken and when the complainant expressed urgency, he raised a demand of Rs.800/- and
was asked to come to his office with the said amount at 3.00 p.m. The Complainant, in great detail, narrates the procedure for raid being explained to
him and about PW-2 being instructed to act as a shadow witness, when he visited the office of the accused for paying of the amount demanded as
bribe. PW-1 has deposed about he, crossing path with PW-3, a person from his village, who also accompanied him to the office of the accused, where
the demand was reiterated. In specific words, the accused asked whether the money was brought and how much amount was brought and, PW-1
responded by stating that as asked in the morning, he has brought an amount of Rs.800/-. He deposed that the accused demanded the money, upon
which, the amount of Rs.800/- was taken out from the back of his pant and offered to him, who accepted it by his right hand and counted the money
with both hands and kept it in the left side pocket of the shirt. The entire group, who were sitting in the hotel, came to the first floor of the building of
the PMC, by the raiding party following them, and as soon as the signal was given, PW-5 brisked in and apprehended the accused.
The said narration of the sequence of events by the Complainant is corroborated by the pancha (PW-2). He corroborates the Complainant on the
demand by the accused in the hotel by asking whether he has brought the money and how much amount has been brought and, that, on such demand
being made, PW-1 handing over the said amount of Rs.800/- to the accused.
PW-3 also corroborates these two witnesses on the material aspect of the amount being paid by the Complainant to the accused, when the demand
came from him and, on the bribe amount being tendered, the accused placing it in the pocket of his shirt. The post-trap panchnama contains a clear
mention about the procedure that was followed on the accused being apprehended and, the currencies seized from him, which were smeared with
anthracene powder, were found to glow bluish shade when seen in ultra violet light. No lacuna could be found in the pre-trap and post-trap
panchnamas, to which PW-2 is a signatory and, while in the witness box, being a panch witness, he narrates in detail, the procedure that was adopted
while the trap was held. On the procedure that was followed, there does not appear to be any disparity nor there is any disparity inconsistency on the
two material aspects necessary for proving an offence under Section 7 of the PC Act, being the demand and its acceptance.
10. Before referring to the evidence of PW-5, the Divisional Sanitary Inspector, Mr. Abdul Maniyar, it would be appropriate to make a reference to
the statement of the accused recorded under Section 313 of the Cr.P.C. The accused, to some extent, has admitted the case of the prosecution and, to
a certain extent, admits about the visit of the accused to the shop of the Complainant, but denies the case of the prosecution about the demand raised
by the accused from the Complainant for obtaining a licence required by him as distorted. The accused in his statement under Section 313 of the
Cr.P.C. statrs that he was working in the post of Health Inspector and was assigned the task of leading the Divisional Health Inspectors to various
locations in relation to the work of licence and, after that, he has no connection directly or indirectly with the work of issuance of licence. The accused
specifically states that Mr. Manyar was transferred on 07/01/1991, but he continued to exhibit his interest in the work of grant of licence to the
Complainant and, for helping him out and for the purpose of reducing the demand of delayed fees, he had wrongly put the date, thereby causing loss to
the Government. The accused states that he was reluctant to assist the said act and, therefore, Mr. Manyar himself had noted the date of starting of
business as 31/12/1990 in column No.32 of Ex-35 and by reducing the delayed fees, got the licence of the Complainant approved. Even thereafter, he
retained the papers with him and waited for the Complainant to approach him and instructed the accused that, if the Complainant comes, he should be
asked to wait. On 16/01/1991, when the Complainant enquired with the accused about Mr. Manyar, he asked him to wait. Thereafter, he took him
downstairs for having a cup of tea and, thereafter, on the staircase of the first floor, handed over to him the money by uttering that he was in hurry
and the amount should be paid to Mr. Manyar. He deposed that he accepted the money unaware of, for what purpose, it was being tendered. The
accused has specifically deposed that he has neither demanded the bribe nor accepted the same and it is not within his powers to grant health licence
to the Complainant.
11. The aforesaid statement of the accused recorded under Section 313 of the Cr.P.C. forms the fulcrum of the argument of Mr. Patil and this can
very well be discerned from the line of action of the defence, when Mr. Manyar was cross-examined. Mr. Manyar was examined as a prosecution
witness and counsel for the Appellant has relied upon some admissions at the instance of this witness. PW-4 was working as the Divisional Sanitary
Inspector and was in charge of several Wards, which included Aundh Ward. The accused, who was in charge of Ward Nos.6 and 7 i.e. Aundh,
Pashan NCL and Dapodi, was his subordinate. PW-4 admits that on 07/01/1991, he was transferred and, inspite of his transfer, the new person Mr.
Mujawar had not taken charge. PW-4 admits that on 14/01/1991, the file of the Complainant was shown to him and he admits that he had sought
permission from Dr. Chadakkar to visit the premises of the Complainant and, that is the reason why, he accompanied by Mr. Mujawar, Dr.
Chadakkar, one Pathak and the accused visited the premises of the Complainant on 14/01/1991. On 15/01/1991, he put the papers before Dr.
Chadakkar, who sanctioned the temporary licence to the Complainant and directed to accept the temporary licence fees. Thereafter, PW-4 deposed
that he took the papers in his office. In his cross-examination, PW-4 narrates the procedure for processing the health permits and states that the
permit is to be granted by the Health Department of the PMC and, after the inward number is allotted to the Application, they are forwarded to office
No.2 of the Aundh Ward. PW-4 admits that no endorsement was made by him on the application of the Complainant till the date of his transfer being
07/01/1991 and when his statement was recorded by ACB on 16/01/1991, he had not mentioned that Mr. Mujawar had taken charge of the post or
that he had sought permission to visit the premises of the Complainant from Dr. Chadakkar. In the cross-examination, he deposed that for the first
time, he is deposing before this court that Mr. Mujawar had not taken charge and, therefore, he had gone to the premises and there is no other reason
for doing so. In the next breath, he admits that on 07/01/1991, Mr.Mujawar had taken charge and he had taken charge of the Sub-Division, Ghole
Road. When PW-4 is confronted with Ex-35, which is the application of the Complainant, he admits that it bears his signature and that he signed on
the same on 14/01/1991 after scrutinizing the papers. He also admits that the information filled up in the said proforma from Column Nos.1 to 31 is in
the handwriting of the Complainant and column No.32 is in his handwriting. Pertinent to note that column No.32 is the information about the date of
starting the business. Ex-35 reflects that in the said column, the date is shown as 31/12/1990. When the document is perused, at the end of the
proforma, there is an endorsement to the following effect: “Provisional licence fee and late fee to be acceptedâ€. This endorsement is made by Dr.
Chadakkar on 15/01/1991. The witness has been extensively cross-examined on the aspect of the date of starting business, but he categorically admits
that the sanctioning authority decides as to whether late fee is to be charged or not and, if yes, from what date. The extensive cross-examination,
however, in no way, extracts any admission, which would help the accused. What is relevant is that on 15/01/1991, the provisional health permit was
sanctioned by Dr. Chadakkar. He denies the suggestion that after the papers were signed by Dr. Chadakkar, he had kept the same with himself as he
was expecting some money from the Complainant.
12. In the light of the deposition of PW-4, the defence of the accused under Section 313 of the Cr.P.C. will have to be examined. The stand of the
accused is that Mr. Manyar (PW-4) showed special interest in the case of the Complainant and though he was transferred, he had assisted him in
reducing the late fee, by putting a specific date in Column No.32 and though the health permit was granted, he retained the papers with him with a
hope that the Complainant would visit him and also instructed the accused that the Complainant should be asked to wait. This version will have to be
tested being pitched against the case of the prosecution. The Complainant, in his complaint, did not make any allegation about any demand of bribe
emanating from PW-4 Mr. Manyar. In the complaint, he specifically speak of a particular date being 14/01/1991 when the accused along with some of
his superiors, visited his shop for purpose of inspection. In the complaint, he alleged that after the inspection was over, the accused took him aside and
instructed him to come to the Ward Office. The Complainant’s version is that he did not comply, consequently, on 16/01/1991, the accused again
came to his shop and questioned him about the non compliance and stressed that he should visit his office. When pursuant to this, he visited the office,
the accused informed that his health licence is ready and he should pay Rs.800/-. Upon that, when the Complainant expressed that he can pay only
Rs.200/-, the accused said to him that Rs.200/- would be only the fees. It is the accused, who asked the Complainant to come to the office after 3.00
p.m. with Rs.800/- and collect the health licence, which was ready. The Complainant did not even name Mr. Manyar (PW-4) nor does he speak of
any demand being raised by Mr. Manyar. From the complaint, it is very apparent that the accused was aware that the licence was ready and already
signed and, he tried to take advantage of the situation and demanded Rs.800/- for delivery of the said licence. Since Mr. Manyar is not named as the
person, who demanded the bribe amount, nor Mr. Manyar is the person, who accepted the bribe amount in terms of the demand, the defence of the
accused that it was Mr. Manyar, who wanted to reduce the late fee, by putting a convenient date and the amount was handed over by the
Complainant to him on behalf of Mr. Manyar, is hard to believe. Learned counsel Mr. Patil has attempted to argue that the Complainant has given a
clear admission that the complaint (Ex-28) is typed one, but the one which was given by him, was reduced into writing by hand and there is variance
on the signature on the complaint, Ex-17/1 and Ex-17/2. The said submission also does not deserve any consideration since if the complaint (Ex-28) is
perused, it contains the signature of the complainant himself and he has signed on both the pages of the complaint by endorsing the date as
‘16/01/1991’. Below his signature is the signature of panchas with mention of the date ‘16/01/1991’ and the complaint is also signed by
PW-5 Balkawade, Police Inspector, ACB, Pune.
13. PW-5, the Investigating Officer has deposed that the complaint of Solanki was reduced to writing and signed by him as well as the Complainant.
The panchas also signed on the complaint after comparing the same with the narration of the complaint orally made to them. Mere denial in the cross-
examination by PW-1 that it is not the same complaint, which PW-5 Balkawade has written by hand, in no way, affects his credibility. Ex-28 is the
complaint which bears the signature of the Complainant, the panchas and the Investigating Officer himself with the Complainant putting the date under
his signature. Further submission that the signature on the said complaint is at variance with Ex-17/1, which is an application form, seeking the health
permit in proforma A and Ex-17/2, an application, seeking permission for new kirana shop, if carefully perused, the signature put by the Complainant
on these two documents itself is distinct as, on Ex-17/1, he signs in English by scribing his entire name of ‘Motilal Salunko’ whereas, on Ex-17/2,
he scribes his name as ‘M.B. Solanki’. The Complainant has admitted that while scribing the application, he had taken help of PW-2, who owns
a shop next to the shop of his brother Hansraj Solanki. The Complainant does not appear to be conversant with the paper work, and that is why, he
sought assistance of PW-3. From the very two documents, Ex-17/1 and Ex-17/2, the Complainant has put his signature in different style and it is
apparent that there is no consistency in the manner in which he scribed his signatures. Therefore, the said submission of Mr. Patil about the signatures
being at variance does not appeal to me. There is no reason why the Complainant will falsely implicate the accused and, if it was PW-4, who
demanded the amount, why he should absolve him completely. The Complainant was knowing Mr. Manyar as in his cross-examination, he has
admitted that on 31/12/1990, when his application was taken to Mr. Manyar, he told him to pay charges of Rs.25/- and he had deposited the amount
and showed the receipt to Manyar on 09/01/1991. He also admits that Mr. Manyar had visited his shop and he had assured him that his licence would
be ready on 15/01/1991 and he should come to PMC to collect the licence. The Complainant, however, does not aver that Mr. Manyar had asked the
Complainant to see him or to collect the licence from him. Since the Complainant specifically complains about the demand of money, at the instance of
the accused and since the licence was made ready and, in furtherance of the demand, he accepts the bribe money and is found with the bribe money
on the trap being laid, the ingredients of Section 7 of the PC Act being clearly made out. As the demand and acceptance of money is brought on
record by the prosecution through the panch witness, who was part of the trap (PW-2) and that the independent witness (PW-3), who happened to be
in the PMC office and accompanied the Complainant and pancha and in whose presence the amount was demanded and paid and accepted, the
prosecution needs nothing more to prove. The accused has accepted that the bribe amount was recovered from him but his defence is he was
unaware as to why the amount was placed in his hands. If the defence version is to be accepted, it was very much possible for Mr. Manyar to accept
the amount himself instead of accepting the same through the accused and, if it was so, the Complainant, who was prompt enough to report the bribe
being sought to ACB, would not have spared Mr. Manyar. True it is, that it was neither Mr. Manyar nor the accused who were the authority
competent to grant licence, but it is apparent that the accused took advantage of his position as Health Inspector and who was aware of the procedure
of issuing of licence and though the licence was to be granted by some other authority, demanded an amount by way of illegal gratification by abusing
his position as a consideration for issuing the health licence, which was already granted on 15/01/1991 itself as Ex-17/1, the Application form contains
an endorsement of the same being granted subject to deposit of licence fees and the late fee within one month and the accused was aware of this fact
and, therefore, demanded an amount from the Complainant, who was unaware about the intricacies of the licence being granted and as to who was
the competent authority and how the application is processed and being a layman, unaware of the procedure to be followed for processing his
application.
14. The Special Court has rightly appreciated the evidence brought before it with minute details and did not lent credence to the case of the accused in
defence as the version put forth was not proved by bringing on record any positive evidence but by merely alleging that the amount being meant for
Mr. Manyar, PW-4, the Divisional Sanitary Inspector. The court has rightly held that no suggestion to that effect is given to Mr. Manyar, who was
examined as a prosecution witness. Attempt is made to create doubt about his credentials by cross-examining him extensively about his transfer order,
but that was not sufficient to create a dent in the prosecution case. In any case, Mr. Manyar is also not the person who had granted the licence but it
is Dr. Chadakkar, however, the poor Complainant was unaware, who is the actual authority to grant him licence. For him, the face or authority
empowered to grant him licence is the accused and as he introduced himself to the Complainant. The impugned judgment has rightly appreciated the
case of the prosecution and refused to take cognizance of the defence set up in absence of any credible evidence to that effect. The prosecution has
proved its case and in support of the charges levelled against the accused and the Special Court has rightly convicted the accused on the basis of the
evidence placed before it.
Once it is proved that the amount has been received by the Appellant, the presumption under Section 4 of the PC Act would get attracted. Where the
finding was recorded by the trial court that the accused had accepted the amount, it was wholly immaterial whether the acceptance of amount was for
him or for someone else. Further it was also immaterial whether the accused was in a position to oblige or not. Once it is proved that the accused has
accepted the amount, he cannot escape from criminal liability on a specious ground that he was made ‘scape goat’ or merely an ‘innocent
carrier’. True presumption is rebuttable and the Appellant can prove otherwise. There is no rebuttal except a feeble attempt under Section 313 of
the Cr.P.C.
The Hon'ble Apex Court in the case of Niranjan Hemchandra Sahittal v. State of Maharashtra, (2013) 4 SCC 642, has observed as under:
26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal
will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a
country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy
of the people believing in honesty, and history records with agony how they have suffered.
Tracking down corrupt public servants and punishing them appropriately is the only solution to this menace, which is taking a monstrous shape. Let no
leniency be shown towards such a greed, the Appellant found to be one, must take the consequence.
Since no perversity is noted in the impugned judgment, it is upheld. Necessarily, the Appeal deserves a dismissal and, accordingly, is dismissed.
(SMT. BHARATI DANGRE, J.)
On the judgment being pronounced today, learned counsel Mr.Patil, seeks six weeks’ time for the appellant to surrender.
Time as prayed for, is granted. The appellant shall surrender within a period of six weeks from the date of pronouncement of this judgment.
