JUDGMENT
A.S. Aguiar, J.
1. Both these appeals are from the common Judgment and order dated 31st March, 1994 passed by the Special Judge, Thane, convicting accused No. 1 Prakash Anant Pawar of the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentencing him to suffer R.I. for one year and to pay a fine of Rs. 1000/- i.d. S.I. for three months and convicting accused No. 2 Sawalaram Kachere Mukadam of the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to suffer R.I. for six months and to pay a fine of Rs. 1,000/- i.d. S.I. for three months. Criminal Appeal No. 236/94 is filed by accused No. 1 Prakash Anant Pawar while Criminal Appeal No. 294/94 is filed by Sawalaram Kachere Mukadam, accused No. 2.
2. Both the accused were charged for offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 on the allegations that at the relevant time i.e. in the month of January 1991 and February 1991, accused No. 1 being Talathi at Dahigaon Saja, Tal.Shahapur, Dist.Thane and accused No. 2 being a revenue Circle Inspector at Khardi circle, Tal.Shahapur, Dist.Thane i.e. Public servants within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988, demanded Rs. 2000/- from the complainant Kaundiya Subramaniyam Premavati as illegal gratification for effecting the mutation entries in her name in the Revenue Record i.e. 7/12th extract and in the record of rights in respect of land being Survey No. 21/2 part 13, area 2 Hectors and 79 Acres purchased by the complainant from one Shivramsingh Shankarsingh Pardesi a resident of Adharwadi, District Nashik, which demand was first made in January 1991 in the office of the Talathi at Khardi by accused No. 2, the Circle Inspector from the complainant as illegal gratification for preparing the necessary papers to effect the transfer of the land from the vendor to the complainant. The demand was made by the accused No. 2 in the presence of Talathi, accused No. 1. Again on 20.2.91, when complainant met accused No. 1 Talathi for the 7/12th extract, accused No. 1 told him to meet the Circle Inspector, accused No. 2 as the said extract would not be given without the sanction of accused No. 2. Accordingly on 25.2.91, complainant met accused No. 2 in Hotel Apsara when accused No. 2 demanded the bribe of Rs. 2,000/- but finally settled it for Rs. 1,000/-, Rs. 500/- for himself and Rs. 500/- for accused No. 1 to be paid to the accused for issuing 7/12th extract and extract of mutation entries.
3. According to the complainant, she had applied for obtaining the 7/12th extract to the Talathi of village Dudhar i.e. Shri Prakash Pawar, the present appellant/accused No. 1. However, since the same was not issued despite several visits by the complainant to the office of the Talathi, she applied to the collector who promised to look into the matter. She sent copies of her application made to the collector, to the Talathi and Tahasildar. The said application is at Exhibit-10. Since nothing happened for 15 days, the complainant met that Talathi sometime in January 1991. The Talathi (accused No. 1) told her nothing was in his hand sand that the Circle Inspector, accused No. 2 was the proper authority to consider the matter. In the same week in January 1991, the complainant met the Circle Inspector in the office of the Talathi when the Talathi, accused No. 1, and the Circle Inspector, accused No. 2 were both present. On making inquiry about her application for 7/12th extract, the Circle Inspector, accused No. 2 told her “Aisa Kaisa Chalega, Paisa Kharch Kiye Bigar 7/12 Nahi Milega.” The complainant thereupon told the Circle Inspector that she would receive the 7/12 extract without having to pay any money.
4. Subsequently, one Anant Khardikar (PW-3) contacted the complainant and tried to persuade her to atleast spend Rs. 5,000/- for getting the 7/12th extract. Complainant told him that she would not spend a single paisa for getting 7/12th extract. Khardikar told the complainant that she must pay something for getting the 7/12th extract. Khardikar then arranged a meeting of the complainant in the Apsara Hotel on 24.2.91 with the Circle Officer, accused No. 2. At the meeting, the complainant, Khardikar and Circle officer, accused No. 2 were present. One Estate Agent by name Gulab Deshmukh also came and joined them. At the said meeting, it was settled that the complainant would pay Rs. 1000/- to the Circle Officer, Sawalaram Mukdam, for getting the 7/12th extract. Upon the amount being settled, the Circle Officer told the complainant “to go to him” on the next day in the evening with the amount of Rs. 1000/- where she would be given 7/12th extract and mutation entries in respect of the property she had purchased. However, on the same day, the complainant went to the Anti Corruption bureau and gave an oral complaint. On 26.2.91, the complaint was recorded by the Anti Corruption Authorities. The same is on record. It was decided to lay a trap for which necessary arrangements were made. A sum of Rs. 1000/- being trap money was handed over to the complainant. Pursuant thereof, the complainant alongwith the raiding party and panchas proceeded to the office of the Talathi. On the way at the Naka, Ananat Khardikar joined the raiding party to the Talathi office. However, only the complainant, Panch Thorat and Anant Khardikar went into the Talathi’s office. On seeing them, Talathi appeared pleased and told the complainant “Madam Aap ka kam ho gaya, circle inspector ne aapka paper bhej diya”. Complainant introduced the panch witness Thorat as her friend. The Talathi then started making the records and completed all the documents on the spot and handed over the 7/12th extract and mutation entries to the complainant. On receiving the same, complainant asked Talathi whether she should leave. The Talathi told her that she could do so. However, Anant Khardikar (PW-3) interrupted and told the Talathi that Madam had to pay the amount to the Circle Officer and that he should accept the said amount. Thereupon, the Talathi asked the complainant to pay the amount to him. Accordingly, complainant handed over the amount of Rs. 1000/- (trap money) to the Talathi. Talathi, accused No. 1 kept the money in his file and wrapped the file with cloth and kept it in the cupboard. According to the complainant, Talathi clarified that the said amount was not for himself but for the Circle Officer, accused No. 2. Thereafter, complainant came out of the office and gave the prearranged signal by removing her spectacles. Thereupon, the raiding party came into the office of Talathi. They were informed by the complainant that Talathi, accused No. 1 had received the said amount and kept it in the records. Accused No. 1 was apprehended and the trap money recovered from the cupboard of Talathi as per the disclosure by the accused No. 1 himself. Necessary tests were carried out. At that time, accused No. 2, Circle Officer also arrived in the office of the Talathi. On seeing him, the complainant informed the police officers, by pointing out the Circle Officer, that he was the real culprit. The complainant handed over to the police the 7/12th extract and mutation entries which he had just received from the Talathi. They are at Exhibits 12 and 13. The Investigating Officer Joshi recorded the statement of the complainant. F.I.R. came to be registered against both the accused. Chargesheet was filed against the accused before the Special Court after the receipt of necessary sanction was obtained. The Special Court framed charges which were read over and explained to the accused who denied his guilt and claimed to be tried. After recording the evidence of witnesses, the statement of the accused under Section 313 was recorded.
5. On the basis of the evidence recorded by PW-1, PW-2 and the evidence of PW-3 who according to the trial Court has corroborated the evidence of the complainant, the trial Court found accused No. 1 guilty for the offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Accused No. 2 under Section 7 of the Prevention of Corruption Act. We fail to see why the Special Court thought it fit to convict the accused No. 1 only under Section 13(2) read with Section 13(1)(d) and accused No. 2 only for the offence under Section 7 of the Prevention of Corruption Act specially in view of the fact that the learned trial Court has found both the accused guilty of having demanded and accepted the bribe amount.
6. Learned Advocates Mr. Pradhan for the accused No. 1 and Mr. Dhakephalkar for accused No. 2 have submitted that the Special Judge misdirected himself in appreciating the evidence and coming to the conclusion that the accused are guilty of the said offences under the Prevention of Corruption Act. it is contended that in view of the evidence that has come on record, no case of demand of bribe has been made out so far as accused No. 1 is concerned and that so far as accused No. 2 is concerned, no case of acceptance of bribe has been made out specially in view of the fact that the trap money was not received by him. It is contended that since accused No. 1 has only received the amount on behalf of accused No. 2 and there is no evidence of any demand for payment of money having been made by him, accused No. 1 cannot be held guilty of the offence of having demanded and accepted a bribe for doing an official act. So far as accused No. 2 is concerned, it is submitted that since accused No. 2 has not himself received the amount but is only alleged to have made the demands, no presumption can be drawn against him under Section 20 of the Prevention of Corruption Act without any proof that the amount was received on his behalf by accused No. 1. It is contended that in order to hold accused No. 2 guilty, it must be shown that accused No. 1 was an accomplice of accused No. 2 and that the money was received by accused No. 1 on behalf of accused No. 2.
7. It is contended that there was no demand made by accused No. 1. In fact in her cross-examination, complainant has stated that during the entire transaction, accused No. 1 did not demand any money from her as illegal gratification and there was no talk in the office of the Talathi about payment of any money and therefore, the mere receipt of the money by accused No. 1 would not in the facts of the case make accused No. 1 an accomplice in the commission of offence. So far as accused No. 2 is concerned, no money was received by him. Nor has it been proved that accused No. 1 received the money from the complainant on behalf of accused No. 2 and the mere statement of complainant that she paid the amount to accused No. 1 at the behest of accused No. 2 is not sufficient to implicate accused No. 2 in the offence of having accepted a bribe for doing any official work.
8. Learned Advocates for the appellants point out serious flaws in the reasoning of the Special Judge. It is contended that the learned Special Judge has based his findings on surmises and guess work and not on any evidence that has come on record. An instance in point is when after the complainant had received the documents which were handed over to her by Talathi, accused No. 1, complainant inquired from him whether she should pay fees as per rules but the Accused No. 1 kept mum. The learned Judge surmised that the silence on the part of the witness clearly showed that he wanted to help the accused. The learned Special Judge reasoned that when the complainant had asked accused No. 1 whether she should pay any fees, accused No. 1 had no reason to keep mum but he should have replied to “either pay the fees as per rules or that she need not pay any fees”, The learned Special Judge has concluded that by keeping mum, it was clear that accused No. 1 had consented to receive the bribe amount.
9. Another instance in point is, when on the date of the trap complainant went to the office of Talathi, accused No. 1 expressed his happiness at seeing her and immediately started completing the records and handed over the said papers to the complainant. The learned Special judge has observed that the record of documents viz., 7/12 extract were prepared by the Talathi immediately on the spot. That the documents were incomplete in that 7/12th extract did not contain the necessary details viz. the name of the previous owners and the deletion of the names of the previous owners etc. This according to the learned Special Judge clearly showed that accused No. 1 was eager to receive the amount from the complainant and was, therefore, over-enthusiastic in preparing the 7/12th extract, and handing over the same to the complainant. The trial Court has further observed that mutation entry (Exhibit-14) shows that the endorsement of sanction by the Circle Inspector was made on the previous date i.e. on 25.2.91 i.e. the day when the complainant had met him in the Apsara Hotel and had agreed to pay him of Rs. 1000/-. The learned trial Court has argued if accused No. 2 had no concern with the said transaction and he was busy in census work, then certainly he would not have made the mutation entry on 25.2.91, but the said entry would have been made either earlier or after 25.2.91. On the basis of above observations, the learned trial Court has come to the conclusion that the entry of sanction made on 25.2.91 by the Circle Officer-accused No. 2 indicates that he was equally responsible for the transaction as he was the main person who insisted on the payment of the gratification amount. From these observations of the learned trial Court, it is sought to be argued that Special Judge has not based his order of conviction on the evidence on record.
10. While the above observations of the Special Judge seem to suggest a thought process indicative of guess work on the part of the Special Judge, that by itself would not nullify the findings of the Special Judge which are based on evidence which has gone uncontroverted.
11. It is the case of the prosecution that the complainant had after purchase of the land and registration of the sale deed immediately applied for the necessary 7/12th extract as she was in a hurry to get the construction work on the plot started. She made the application to Talathi accused No. 1. However, nothing happened despite lapse of over 15 days and several trips to Talathi’s office. She then approached the Collector who promised to look into the matter. Again despite lapse of over two weeks, there was no progress. Complainant then again approached Talathi, accused No. 1. Complainant was told by accused No. 1 that noting was in his hand sand that she would have to approach the Circle Inspector (accused No. 2) who had to give his sanction for effecting the mutation entries. Thereafter complainant met the Circle Inspector in the office of the Talathi when he hold the complainant that nothing could be done without her making payment of some amount. However, complainant refused to pay anything and told the accused that she would get the work done without having to pay anything. Thereafter, the complainant was approached by one Anant Khardikar (PW-3), a broker who also acted as link between Government officials and the public. PW-3 tried to convince the complainant that she had to pay some amount to get the work done. He arranged a meeting of the complainant with accused No. 2 at the Apsara hotel on 25.2.91 when PW-3 Anant Khardikar as well as one Gulab Deshmukh, another broker, were also present. At the meeting, it was agreed that the work of the complainant would be done on her paying Rs. 1000/- out of which Rs. 500/- was for the Circle Officer and Rs. 500/- for accused No. 1, Talathi. The job of getting the 7/12th extract and mutation entry prepared required the prior sanction of the Circle Officer-accused No. 2, while the work of actually effecting the mutation entries and preparing the 7/12th extract was required to be done by accused No. 1 Talathi. After the said meeting held at Apsara hotel and apparently accepting the proposal to pay Rs. 1000/- as bribe, the complainant decided to lodge the complaint and accordingly, approached the A.C.B. who decided to lay a trap. Accordingly, on 25.2.91, complainant attended offence of A.C.B. where her statement (F.I.R.) was recorded. Necessary arrangements were made for the trap. The complainant alongwith raiding party and anant Khardikar went to the office of the Talathi, accused No. 1, and though accused No. 1 did not specifically demand the money, complainant handed over the trap amount of Rs. 1000/- to accused No. 1 after PW-3 Anant Khardikar reminded the accused. Even at that stage, accused No. 1 clarified to the complainant PW-1 that he was receiving the money on behalf of accused No. 2.
12. Thus, it is seen that there was a demand made for illegal gratification for doing official work both by accused No. 1 and accused No. 2 when complainant met them sometime in January 1991 in the office of Talathi. The demand was repeated on 24th February, 1991 when accused No. 2 reduced the demand amount to Rs. 1000/- in the presence of two independent persons including PW-3 Anant Khardikar at a meeting held in hotel Apsara arranged by PW-3 Khardikar who has in his deposition confirmed the holding of the meeting at Apsara hotel on 24.2.91. It was subsequent to this demand made on 24.2.91 that the complaint dated 26.2.91 (Exhibit-11) was registered and trap laid. On the day of the trap itself, complainant handed over the trap amount of Rs. 1000/- to accused No. 1 after accused No. 1 told the complainant that she was required to give him Rs. 1000/- as per arrangement made with Circle Inspector, accused No. 2. The fact of the meeting on 24.2.91 at hotel Apsara and the demand made at that meeting for Rs. 1000/- has been stated by PW-3 in his statement recorded by the police. Although PW-3 in his deposition before the Court has made no reference to the demand for money or settlement of the amount to be paid to the accused at Rs. 1000/-, nevertheless he confirms the meeting and that accused No. 2 told the complainant that he would after verification, issue the 7/12th extract and that accused No. 2 asked the complainant to come to the office on 26.2.91 for receiving the documents. In his cross-examination, PW-3 has denied the statement made by him to the police marked as “A” but has not been able to explain why the Investigating Officer PW-4 Joshi has so recorded his statement. PW-4 Investigating Officer Joshi has stated that he has recorded the statement “A” as per the say of PW-3. There is no reason to disbelieve the Investigating Officer. There was no reason for the Investigating Officer to record any false statement. The demand made by accused No. 2 at the Apsara hotel is also proved by the evidence of the Investigating Officer, PW-4 who recorded the F.I.R. of the complainant after she had attended the meeting at Apsara hotel and lodged her complaint with A.C.B. If nothing else, the evidence of PW-3 who acted as a agent between these Government Officials and the public, could be said to atleast establish the fact that there was a meeting on 24/2/91 at hotel Apsara which accused No. 2 had with the complainant when PW-3 Anant and one Gulab were present. Gulab Deshmukh is also a broker. The demand for illegal gratification made by accused No. 2 on 24.2.91 is established by the evidence of the complainant (PW-1) and corroborated by that of PW-3. The evidence of complainant PW-1 also establishes that accused No. 2 had directed the complainant to pay the amount of Rs. 1000/- to the Talathi, accused No. 1. After all, the amount could be received only after the 7/12th extract and mutation entries were prepared which was the job of accused No. 1 who in the presence of the complainant prepared the document clearly with the knowledge that complainant had come with the money demanded. No doubt, accused No. 1 did not specifically make any demand for money on the day of the trap prior to money being paid to him. However, a demand for bribe was made by accused No. 2 Circle Inspector in the presence of Talathi-accused No. 1 when complainant met them in the Talathi’s office sometime in January 1991 and accused No. 2 told the complainant “Aisa Kaisa Chalega, Paisa Kharch Kiye Bigar 7/12th Nahi Milega.” Thus, clearly the demand was made by accused No. 2 on behalf of both accused No. 1 and himself. Some days prior to the demand made by accused No. 2, complainant had approached accused No. 1 for the 7/12th extract. She was told by accused No. 1 that nothing could be done without sanction of Circle Inspector accused No. 2. After all, the work of preparing the 7/12th extract and the mutation entries involved official acts being done by both the accused Nos. 1 and 2.
13. On the day of the trap itself, although accused No. 1 did not make any specific demand for the money, complainant paid the trap money to accused No. 1 pursuant to the demands made by accused No. 2 sometime in January when accused No. 2 told he that no work could be done unless she paid money as well as at the meeting held on 24.1.91 when accused No. 2 told the complainant that the money was to be handed over to accused No. 1.
14. The defence of accused No. 1 is that at no stage did he make any demand for money and the acceptance of the money on the day of the trap was for and on behalf of Circle Inspector, accused No. 2. Therefore, he has committed no offence under the Prevention of Corruption Act. The defence of accused No. 2 is that he received no money from the complainant and therefore, he cannot be convicted for having demanded and accepted illegal gratification. The fact that the money was accepted by accused No. 1 is established by the evidence on record pertaining to the recovery of the trap amount from accused No. 1 which has not been challenged. The acceptance was on behalf of himself and accused No. 2. No direct evidence of accused No. 2 having himself accepted the money is necessary. The evidence of the complainant spells out the joint demands made by both the accused for obtaining illegal gratification for doing official acts and the money having been accepted by accused No. 1 for and on behalf of accused No. 2 and himself. Even otherwise in view of the evidence on record, this Court is required to draw the inference that demands for illegal gratification were made both by accused No. 1 and accused No. 2 and that the amount of Rs. 1000/- was accepted by both accused No. 1 and accused No. 2 pursuant to the demands made by them earlier as a motive or regard for doing or not doing official acts. The Apex Court in a recently reported judgment , State of Andhra Pradesh v. C. Uma Maheswara Rao and Anr. has clarified the law on legal presumptions as follows:-
“The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inference are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.”
15. In the facts and circumstances of the case and the evidence on record, it can be presumed that both the accused No. 1 and 2 are guilty of the offence of having demanded and accepted illegal gratification or bribe for doing official acts. Hence, the following order.
ORDER
Appeal rejected.
The conviction of both accused No. 1 and accused No. 2 for the offences under Section 13(2) read with Section 13(1)(d) and Section 7 of the Prevention of Corruption Act is upheld. However, so far as the sentence is concerned, the period of imprisonment of accused No. 1 is reduced from one year to six months.
Appeal disposed of.
