Cri. App. No. 287 of 1991. Case: Vishwanath s/o Karnuji Londhe Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Cri. App. No. 287 of 1991 |
| Counsel | For Appellant: B. V. Gaikwad Counsel and For Respondents/State: Kishor Pande, Additional Public Prosecutor Counsel |
| Judges | V. S. Sirpurkar, J. |
| Issue | Prevention of Corruption Act (49 of 1988) - Sections 13(2), 19, 20 |
| Citation | 1995 CriLJ 2571 |
| Judgement Date | July 26, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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The accused/appellant challenges his conviction in this appeal for the offence punishable under S. 13(2) of the Prevention of Corruption Act, 1988 and the consequent sentence passed by the Special Judge, Yavatmal.
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First the basic facts:-
The accused/appellant at the relevant time was working as a Clerk and was posted as the Court Shirestedar of the Court of Judicial Magistrate First Class. He was posted at Pusad. Complainant Ramesh who was a regular court-bird was facing number of prosecutions against hi m. Not only he but his brother Suresh Arya also faced several prosecutions. It is the prosecution case that on one occasion when complainant Ramesh failed to attend the Court, a non-bailable warrant was issued against him. It was on 18-1-86 that the complainant Ramesh came to know that the arrest warrants were issued against his brother Suresh Arya also who was a co-accused in one case and, therefore the accused had asked him to attend the Court on 4-8-1986. It is the prosecution case that on that day complainant attended the Court and since his brother Suresh could not attend the Court, the complainant made a query to the accused as to whether the arrest warrant issued against him (the brother) could be cancelled whereupon the accused informed him that he had received the unserved warrant of Suresh and in case it was to be cancelled, the omplainant would have to pay a bribe of Rs. 100/- to him. It is the prosecution case that on that day itself the complainant paid him the bribe of Rs. 20/- and the remaining Rs. 80/- were to be paid on 8-8-1986 when the case was to be fixed. In short, the prosecution claims that it was on 4-8-1986 that the first demand of bribe was made and the further meeting was arranged on 8-8-1986 as the accused fixed the case on 8-8-1986 because the accused was not sure that the complainant would turn up and pay the rest of the money. It is the prosecution case that on 7-8-1986 the complainant approached the Anti-Corruption Bureau at Yavatmal and expressed desire to lodge a complaint. P.W. 6 Pathan enquired into the complaint as to whether he had brought the amount of Rs. 80/- and since the said amount was not with the complainant, Pathan is alleged to have asked the complainant to come with the amount on the next day, i.e. on 8-8-1986 around 8 A.M. Accordingly, the complainant attended the Anti-Corruption Bureau and lodged his complaint Exh. 16. Thereafter two witnesses were summoned by Pathan from the office of the Sub-Divisional Officer they being Maroti Patil P.W. 2 and Chandrahas Gujar whom the prosecution has not chosen to examine. The complainant is supposed to have apprised the panchas of the illegal demand of bribe by the accused and then he produced the amount of Rs. 80/-. There were in all four currency notes, one of Rs. 50/- denomination and three of Rs. 10/- denomination. Pathan demonstrated the use of phenolphthalein powder and the liquid of Soda bicarb. After the demonstration was given and under stood by panchas, the notes were treated with the phenolphthalein powder. It is the case of the prosecution that the panch P.W. 2 Maroti was to accompany the complainant and it was only in case that the accused had demanded the said money, that the money was to be given to him. The money was kept in the right side pocket of the pyjama worn by the complainant and the complainant was instructed strictly not to touch the money till it was asked for by the accused. On the money having been paid, the complainant was to give a signal by inserting his finger in his ear. First panchanama was executed there and the party then proceeded to Pusad.
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It is the prosecution case that the party reached Pusad at about 2 O'clock in the afternoon and the two-some, namely, the complainant and the panch Maroti Patil then went to the Court only to find that the accused was not on his seat. Presuming that he had gone to the hotel, the two-some went to the nearby restaurant where they found the accused. According to the prosecution, the complainant asked the accused as to whether he had cancelled the warrants of his brother on which the accused answered him in the affirmative and asked about the money which was decided to be paid. The prosecution urges that the complainant thereafter paid him Rs. 80/- which were kept with him and which were treated with the phenolphthalein powder. On the agreed signal having been given, the officers who were lying in wait pounced upon the accused and held him. The usual demonstrations followed. It is the case of the prosecution that the money was found in the right side pocket of the pant of the accused and his right hand was stained with phenolphthalein powder. The usual investigation there after followed. The second panchnama was executed. The records were seized and the sanction was obtained from the District and Sessions Judge, Yavatmal who was the appointing authority of the appellant/accused. On this basis, the charge-sheet came to be filed before the Special Judge.
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The Special Judge, Yavatmal seems to have framed the charges not under the old Act but under the new Act of 1988. As a matter of fact, the charges under S. 13 of the Prevention of Corruption Act, 1988 could not have been framed particularly in view of the fact that the new Act was not on the statute book on the day when the offence took place, i.e. in the year 1986. Be that as it may, the Additional public Prosecutor also did not take any exception to this course being adopted nor did the accused feel aggrieved by the framing of this charge and indeed are accused has not in any manner shown that he was prejudiced or that he was claiming a prejudice even before this Court. Shri B. V. Gaikwad, the learned counsel for the accused, did not claim the prejudice 7 account of the charges not having been framed under the old Act and contended that the charges were properly understood and it could be deemed as if the charge was under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161 of the IPC.
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The accused raised a defence that as a matter of fact, it was because of him that the complainant was put behind the bars and the complainant felt estranged on account of this act on the part of the accused and, therefore, the complainant had deliberately laid this trap and got the accused falsely implicated. His further case is that he never demanded the money, muchless the bribe nor did he accept the money on 8-8-1986 as was the claim of the prosecution. He claimed that the money was pushed into the pocket of the accused and since he held the hand of the complainant while he was doing so, his hands might have been stained. At least that appears to be the explanation of the staining of the hand of the accused. On this material, the trial Court accepted the evidence of the complainant and the two other witnesses and proceeded to convict the accused.
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Shri B. V. Gaikwad, the learned counsel for the accused/appellant, has fairly submitted that he would not claim any prejudice on the ground of the charge having been framed of the offences as defined under the new Act, i.e. 1988 Act. His first...
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