JUDGMENT
J.H. Bhatia, J.
1. The accused has preferred the present appeal challenging the order of conviction passed by the learned Special Judge, Jalgaon in Special Case No. 7/1989, whereby the accused was convicted for the offence punishable under Section 7 and sentenced to undergo R.I. for 6 months and to pay fine of Rs. 2,000/- and was also convicted for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and was sentenced to undergo R.I. for one year and to pay fine of Rs. 2,000/-.
2. The prosecution case in brief is that during the year 1988-89 the accused-appellant was working as Sheristedar in the office of Deputy Collector, Amalner Sub-Division. On 17-3-1988 it was announced in the village Janwe that the Government intended to allot fair price shop and the interested parties could make an application to Sub-Divisional Officer Amalner. In view of this, complainant Bhatu Vikaram Patil, P.W.1 also applied for fair price shop for village Janwe, in the month of March, 1988. In July, 1988, he was called in the Supply Office at Amalner and his statement was recorded by the concerned Officer. In September, 1988, he was informed to comply requirement of necessary documents in support of his proposal. On 12-9-1988, the complainant approached the office of S.D.O. at Amalner with relevant documents. He approached S.D.O. Tikaram Bagul D.W.2. At that time the accused was also called in the Chamber of S.D.O. The S.D.O. Bagul asked the accused about the proposal of the complainant for fair price shop and also enquired as to whether he had purchased any small saving certificate and if yes, for how much amount. As he had not purchased any small saving certificate, the complainant was informed that he would be required to invest Rs. 5,000/- in small savings to get fair price shop. However, the complainant showed his inability but he expressed that he could invest at the most Rs. 1,000/-. At that time S.D.O. Bagul told him that it was not possible to allot fair price shop for such small investment and he insisted for Rs. 5,000/-. After this talk S.D.O. left the office for some meeting at Parola. After that the complainant contacted the accused, who advised him to come on the next day. Accordingly, the complainant again went to the office of S.D.O. on 13-9-1988. When he went to the office of the S.D.O., the accused was also called there and after interview of the complainant, he was asked to deposit Rs. 1,000/- in small saving by the S.D.O. According to prosecution after coming out office of S.D.O., the complainant enquired with the accused about the investment and the accused informed him that he shall deposit Rs. 500/- in the small saving. Accordingly, the complainant paid Rs. 500/- to one Patil, a Clerk in the office, so that the small saving certificate of Rs. 500/- could be purchased. He was told by Patil, that he would keep the certificates ready within 2/3 days. On 14-9-1988, the complainant paid fee of Rs. 5/- by challan. According to prosecution on 19-9-1988 at about 3 p.m. the complainant again went to the office of S.D.O. and he informed accused that he had invested Rs. 500/- in the small saving certificate. He enquired about the fair price shop license and the accused told him that the license was ready. However, for delivery of the license the accused demanded Rs. 500/-. The complainant told him that he would make the payment on 20th/21st September, 1988 as he did not have cash at that time.
3. As the complainant had no intention to pay the bribe, he approached the office of Anti Corruption Bureau at Dhule, on 20th September, 1988 and lodged the report. Dy. S. P. Choudhari of A.C.B. asked the complainant to come to his office next day morning. Accordingly, the complainant went to the office of A.C.B. in the morning of 20th September, 1988. At that time two panch witnesses were called. The complainant narrated his complaint in presence of Dy. S.P. and the panch witnesses. The procedure of the trap, use and effect of Anthracene powder etc. was explained to the complainant and the panch witnesses. The complainant was having an amount of Rs. 625/-. Out of that 5 notes of Rs. 100/- each were separated. Anthracene powder was applied to both sides of those 5 notes and the said notes were folded and put in the right side hip pocket of the pant of the complainant. He was clearly instructed that he should not touch the notes, unless there was a demand from the accused. Panch No. 1 Ravji (P.W.2) was instructed to remain with the complainant throughout the incident of the trap and to watch and hear what would happen. Accordingly, the raiding party consisting of the complainant, both panch witnesses, Dy. S.P. Choudhari and other staff members went towards the S.D.O. office.
4. Complainant P.W.1 Bhatu and Panch witness P.W.2 Ravji proceeded to the office of the accused, while remaining members of the raiding party took a position at some distance. After reaching near the table of the accused, the complainant enquired with the accused about license of the fair price shop and the accused told him that the license was ready but he asked whether the complainant had brought amount of Rs. 500/- as instructed earlier. The complainant replied in affirmative. The accused demanded the amount from the complainant and accordingly, complainant took out tainted notes from the hip pocket of his pant and put the same in the hand of the accused. The accused counted the notes with both of his hands and then put those 5 notes in one brown paper envelope and he put that envelope in the right side front pocket of his shirt. Thereafter, the accused directed D.W.1 Ramesh Mahajan, a clerk in the said office to give license of the fair price shop to the complainant. Thereafter, the complainant came out of the door of the office and gave pre-determined signal to the members of the raiding party. Accordingly, Dy. S.P. Dattatraya Choudhari P.W.3 and other members of the raiding party came there. By that time the accused had left his table and had gone to the Chamber of S.D.O. P.W.3 Dy. S.P. Choudhari called him out and as soon as the accused came out, his both the hands were caught by the Police constable. Dy. S.P. Choudhari disclosed his identity and as per the procedure, hands of the accused were tested under ultraviolet rays. There was bluish glow on his hands indicating presence of anthracene powder. , Panch No. 2 took out envelope from the front pocket of the shirt of the accused. That envelope contained 5 tainted notes, their numbers tallied with the numbers noted in the pre-trap panchanama. Anthracene powder was also found on them. Anthracene powder was also found in the envelope. However, anthracene powder was not detected on the clothes of the accused. After completing other formalities, Panchanama Exh.59 was prepared about this trap. After obtaining necessary sanction from the Collector, Jalgaon, charge-sheet was filed against the accused.
5. The accused was charged for the offences punishable under Section 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act. He pleaded not guilty. According to accused as directed by S.D.O. Bagul, the complainant had agreed to invest Rs. 1,000/- in small saving. He had already purchased small saving certificate of Rs. 500/- which was minimum requirement and as there were directions and circulars from the Government and the Collector to achieve certain target of small savings, the complainant was required to invest as much amount as possible, in addition to the minimum Rs. 500/-. According to him when the complainant approached him and asked about the license, he informed that the license was ready and the complainant also told that he had brought additional amount of Rs. 500/- for investment. In view of this, he went to S.D.O. to inform him that the complainant was willing to invest additional Rs. 500/- in the small saving. Meanwhile, Dy. S.P. Choudhari, came there and when the accused was called out, the said envelope containing the amount was already kept by the complainant on the table. As per direction given by Dy. S.P. Choudhari, he took out those notes from the envelope and therefore, his hands showed presence of Anthracene powder. According to him the complainant was a Shivsena worker. One D. M. Sutar, was Taluka President of Shivsena. Several chapter cases were registered against him and there was a proposal for externment of D. M. Sutar from the District. Said D. M. Sutar had instigated the complainant to falsely implicate the accused in this case.
6. Heard Mr. K. C. Sant, learned Counsel for the appellant and Mrs. R. R. Mane, learned A. P. P. for the State.
7. On behalf of the prosecution in all 4 witnesses were examined. They are P.W.1 Bhatu Vikram the complainant, P.W.2 Ravji Vitthal, panch No. 1, P.W.3 Dattatraya Tukaram, Dy. S.P. and P.W.4 Amitabh Rajan, Collector of Jalgaon and sanctioning authority. Several documents were placed on record. The accused also examined D.W.1 Ramesh Mahajan, a clerk in his office and D.W.2 Tikaram Bagul, S.D.O. in his defence. They also produced certain documents in support of his plea. The learned trial Court found that the evidence of the complainant and Panch No. 1 P.W.2 Ravji is consistent about the demand and acceptance of the amount and Anthracene powder was found on both the hands of the accused showing that he had accepted the amount. Rejecting the defence the learned trial Court accepted the prosecution story and convicted the accused and sentenced him as stated above.
8. It is deposed by P.W.1 Bhatu – complainant and it is not disputed on behalf of the defence that in March, 1988, Government declared its intention to allot fair price shops in different villages and such announcement was made in the village of the complainant also. Accordingly, the complainant made an application for allotment of fair price shop for his village. In July, his statement was recorded but there was no further progress till 12th September, 1988, when he was called to the office of S.D.O. On that day, the complainant met S.D.O. Bagul in connection with his application for fair price shop. At that time the accused, who was dealing with that table was also called in and S.D.O. enquired as to how much amount the complainant had invested in small savings. On being informed that nothing was so far invested, the S.D.O. asked the complainant to invest at least Rs. 5,000/-. The accused expressed his liability but showed his willingness to invest Rs. 1,000/-. However, S.D.O. told him that this was not sufficient and for such small investment fair price shop could not be allotted. He insisted for investment of Rs. 5,000/- and after that S.D.O. left the office for some meeting at village Parola. After his departure, the complainant discussed the matter with accused who asked him to come on the next day as S.D.O. was not present. Accordingly, on 18-9-1988, the complainant again went to the S.D.O. Accused was also with in the Chamber of the S.D.O. After some interview of the complainant, S.D.O. agreed to accept investment of Rs. 1,000/- in small saving. After this talk the complainant and the accused came out. Thereafter, the accused paid fee of Rs. 5/- for the license by challan and he also handed over amount of Rs. 500/- to one Patil a clerk in the same office to arrange purchase of the National Saving Certificates. It is revealed that son of Patil is working as agent for National Saving Certificate and through him the certificates were purchased.
9. P.W.1 Bhatu deposed that on 13-9-1988 during his meeting with S.D.O. Bagul, there was discussion about the investment in National Saving Certificate and in the said discussion S.D.O. Bagul had also directed him to pay Rs. 1,000/- as inspection fee. According to him, in view of this demand of inspection fee, he told that no amount shall be invested in National Saving Certificate. After that the accused called the complainant outside the Chamber of S.D.O. and asked him as to how much amount he was paying to him. On this the complainant told the accused that he would invest only Rs. 500/-. According to him, after that he himself informed S.D.O. Bagul that he would pay Rs. 500/- towards National Saving Certificate. After that he paid Rs. 500/- to P. K. Patil, for purchase of National Saving Certificate. He deposed that on 19-9-1988 when he again went to the office of S.D.O. and enquired from the accused about the license, the accused informed him that sanction was accorded but he told the complainant that he should pay Rs. 500/- to him and then he would do the needful about his proposal. He agreed to pay amount on 20th/21st September, 1988 and meanwhile, he approached Anti Corruption Bureau with his report.
10. As per the evidence of P.W. 1 Bhatu, P.W.2 Ravji and P.W.3 Dattatraya after completing the formalities in the office of A.C.B. pre-trap panchanama was prepared, necessary instructions were given to the complainant and the panch witness. Five notes of Rs. 100 denomination each which were produced by the complainant were treated with anthracene powder with the help of cotton swab. The notes were folded and put in the right side hip pocket of the complainant. He was instructed not to touch the said notes, unless there was a demand. After giving necessary instructions raiding party went towards the office of S.D.O. Evidence of P.W.1 Bhatu and P.W.2 Ravji reveals that after going to the table of the accused, P.W.1 Bhatu enquired about his fair price shop license and accused informed him that license was ready. However, the accused enquired as to whether P.W. 1 had brought amount of Rs. 500/-. Evidence reveals that the complainant invited the accused to come out for a cup of tea but the accused turned down that request and asked him to pay the cash if he had brought. Thereafter, the complainant took out the said tainted notes from backside right pocket and offered the same to the accused. The accused took the notes in his hand. The complainant asked him to get the said amount counted. The accused accepted the amount and counted the amount with his hands and then accused took one brown envelope from his table and put the said notes into that envelope. The accused then put that envelope in the left side front pocket of his shirt or Manila. After accepting the amount, the accused directed clerk Mahajan, who was present in the office, to deliver the license to the complainant. After that the complainant left his chair and went to the Chamber of S.D.O. Meanwhile, the complainant went outside, gave a signal to the raiding party and Dy. S.P. along with his party came there. Admittedly, when Dy. S.P. Choudhari came there. The accused was in the Chamber of S.D.O. He was called out and as soon as he came out, both the hands of the accused were caught by a Police constable. Dy. S.P. disclosed his identity. After that as per the procedure both the hands of the accused were tested under ultra violet light and presence of Anthracene powder on both the hands were detected. According to P.W.2 Ravji panch witness and P.W.3 Dattatraya, Dy. S.P. the brown envelope containing tainted notes was taken out from the pocket of the shirt of the accused by panch No. 2. Those notes were also tested and anthracene power was detected on them. Inside the envelope anthracene powder was detected. Numbers of those notes tallied with the numbers noted in the pre-trap panchanama. It is admitted by the witnesses that Anthracene powder was not detected on the clothes of the accused. In the cross-examination it was also admitted by the Dy. S.P. that Anthracene powder was not detected on the outer side of the envelope. Defence story was put to the witnesses and it was turned down.
11. Mr. Sant, learned Counsel for the accused appellant vehemently contended that absence of anthracene powder on the outer side of the brown envelope containing tainted notes and on the shirt and particularly in the pocket of the shirt of the accused strongly agitates against prosecution story. He contended that if the accused had really taken the said tainted notes in his hand and had counted the said notes with both the hands as deposed by the prosecution witnesses, naturally anthracene powder must have come into contact with his hands. If with anthracene powder on his hands, he had taken the brown envelope and put the tainted notes into the envelope, naturally, anthracene powder on his hands would come into contact with outer side of the envelope and if he put the envelope in his pocket, then the pocket of his shirt would also come into contact with the anthracene powder which must have been on the outer side of the envelope. He vehemently contended that in view of absence of the anthracene powder outside the envelope as well as on or inside the pocket of the shirt clearly shows that the accused must not have handled that envelope with his hands nor he must have put that envelope in his pocket. There appears substance in this contention. No plausible clarification could be given by the prosecution as to why anthracene powder was not detected on the outer side of that envelope and also on and inside the pocket of the shirt of the accused. According to defence, when the complainant told the accused that he had brought the money, the accused believed that the amount was brought for additional investment in National Saving Certificate and therefore, he went to the S.D.O. and informed him that the complainant was making additional investment. This story of the defence has come in the evidence of D.W.2 Tikaram Bagul, S.D.O. According to defence when the accused had gone into the Chamber of S.D.O., the complainant had lifted a envelope and put the notes into it and kept that envelope on the table of the accused. When Dy. S. P. Choudhari, came there, the envelope was lying on the table. According to the defence, as directed by Dy. S.P. the accused was required to count the notes after taking out from the envelope and thus, his both the hands came with contact with anthracene powder but as after counting the notes, he had not handled that envelope nor he had kept that envelope in the pocket of the shirt, anthracene could not be detected on the outer side of the envelope and on and in the pocket of the shirt.
12. Mr. Sant, learned Counsel vehemently contended that during that period the Government had fixed certain target for each District and Taluka for small savings and therefore, there was a lot of pressure on the Officers to see that maximum amount was invested in the small savings. Not only this, there was a clear circular from the Government that if any officer failed to achieve the target of investment in small saving, adverse note would be taken in his Confidential record. This contention is supported by the record. D.W.2 Tikaram Bagul, the S.D.O., deposed that on 6-9-1988 a telegram was received from the Office of Collector, wherein it was stated that the investment in small savings upto the end of August was not satisfactory and a direction was given that S.D.O. should pay personal attention and see that by the end of September, 50% of the target must be achieved. Copy of that telegram, is at Exh.85. P.W.4 Amitabh Rajan, the Collector of the District also admitted this fact in the cross-examination. Exh.86 is another letter dated 22-8-1988 from the Collector, Jalgaon, to all the Sub-Divisional Officers and Tahsildars, wherein it was clearly mentioned that if the target of small saving was not achieved, serious note of the same would be taken. Not only this it was mentioned that note of the same would be taken in the Annual Confidential Reports of the Officers. In view of this there was a lot of pressure to see that maximum investment was made.
13. According to D.W.2 Bagul, for allotment of fair price shop, investment of Rs. 500/- in small saving certificate was minimum requirement but it was excepted that some additional investment should also be made. He deposed that at the time of the incident the accused had come to his Chamber and informed that the complainant Bhatu had invested more amount in National Saving Certificate in addition to the minimum amount required for that purpose. He also informed that Bhatu had invested such additional amount in National Saving Certificate on that day only i.e. 21-9-1988. He deposed that on 17-9-1988, complainant had come to him and on that day he had instructed him to make some additional investment in National Saving Certificate as per Government Circular. He deposed that one or two days after that the complainant again came to his office and expressed his inability to deposit additional amount in National Saving Certificate. Due to this S.D.O. Bagul, claims to have asked the complainant that license was granted to him and it was his sweet will either to deposit or not to deposit additional amount in National Saving Certificate but he warned him that he should not come and see him again. In the light of this on 21-9-1988, the complainant approached the accused and accused came to the Chamber of S.D.O. and informed him that the complainant was making additional investment.
14. D.W.1 Ramesh supported the defence story and deposed that on 21-9-1988 when the complainant Bhatu enquired about his work with the accused, the accused told D.W.1 Ramesh Mahajan that all the documents were complied and he should handover the license to the complainant. According to him, at that time peon of S.D.O. came and called the accused and accordingly, the accused left his Chamber and went to the Chamber of Bagul. Meanwhile, a senior Officer along with some other persons came there. He also deposed that after the accused came out from the Chamber of S.D.O., the said Officer directed the accused to see into the envelope which was lying on the table and on opening that envelope, it was found that it contained amount of Rs. 500/-. As directed by the Officer, the accused counted those notes. It has come in the evidence of D.W.1 Ramesh that after the arrest of the accused, the staff members were agitated and they made representation Exh.77 to S.D.O. It has come in evidence of P.W.4 Amitabh Rajan, Collector, as well as D.W. Bagul that S.D.O. Bagul had also submitted a report to the Collector, wherein he had stated the above facts and also that the complainant had brought money to make investment in the small saving as per his directions and that receipt for that amount was also being prepared when the accused was caught by A.C.B.
15. Mr. Sant, learned Counsel contended that even the complainant admitted that during his visit with S.D.O. on 13-9-1988, he had agreed to invest amount of Rs. 1,000/- in small saving but he had paid Rs. 500/- to P. K. Patil, for purchase of the National Saving Certificate which was a minimum requirement. According to defence, the accused was trying to get some additional investment and on 21-9-1988 the complainant came and informed that he had brought the amount for additional investment. According to him, defence story appears to be probable and is supported by the fact that anthracene powder was not found on the outer side of the envelope as well as on his shirt. He contended that if the defence story is probable, benefit has to be given to the accused. In Punjabrao v. State of Maharashtra 2002 AIR SCW 16, the Supreme Court held that when the accused is alleged to have received certain amount as illegal gratification and he gives explanation for the receipt of the said amount, it is not necessary for him to establish his explanation beyond reasonable doubt. He can establish his defence by preponderance of probabilities. In State of Andhra Pradesh v. T. Venkateswara Rao 2004 AIR SCW 907, the accused was alleged to have demanded and obtained an illegal gratification of Rs. 400/-. As per evidence of the witnesses amount of Rs. 400/- was recovered from the house of the accused and his hands tested positive for phenolpthalein powder showing that he had handled the tainted notes. The accused explained that the notes were kept in the house before his arrival in the house and on being asked by the investigating Officer, he had brought the amount and because of his handling the said notes he had come into contact with the powder. Their Lordships held that the explanation supported by the evidence could not be rejected as improbable or farfetched.
16. In the present case on one hand there is a prosecution case that the accused had demanded and accepted the amount of Rs. 500/- and therefore, his hands tested positive for anthracene powder. On the other hand, the accused has also given his own explanation with defence evidence that the complainant had come to him for additional investment of amount in small saving and that he was directed to see what was in the envelope and after the cash was found in the said envelope, he was further directed to count the notes and therefore, his hands tested positive for anthracene powder. It is sure, that if after having handled the said tainted notes the accused had taken the envelope and put the notes in the same and then he had put that envelope in the pocket of his shirt, anthracene powder must have been found on the outer side of the envelope as well as in and on the pocket of the shirt. Absence of anthracene powder outside the envelope and on the pocket of the shirt of the accused agitates against the prosecution story and corroborates the defence plea. In view of all the circumstances, story of the defence appeared to be probable. It is not necessary for the accused to prove his defence beyond reasonable doubt. He can establish the defence by showing that it was probable. It appears that the learned trial Court has ignored these circumstances before accepting the prosecution story and convicted the accused. In view of these circumstances, I find myself unable to sustain the impugned order of the conviction and sentence.
17. For the aforesaid reasons, the appeal is allowed. The impugned order of conviction and sentence is hereby set aside and accused is acquitted of the charges against him.