Shri Prakash Shankarrao Kamble vs The State Of Maharashtra on 27 January, 2000

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Bombay High Court
Shri Prakash Shankarrao Kamble vs The State Of Maharashtra on 27 January, 2000
Equivalent citations: 2000 (5) BomCR 643, 2000 BomCR Cri, (2000) 2 BOMLR 98, 2000 CriLJ 2110
Bench: D Deshpande

ORDER

D.G. Deshpande

1. Heard Mr. Nigot for the appellant and APP for the state.

2. Appellant- accused who was convicted by the Special Judge, Pune, for offence under section 161 of the I.P.C. and under section 5(2) r.w section 5(1)(d) of the Prevention of Corruption Act, 1947 and was sentenced to suffer R.I. for one year and to pay a fine of Rs. 200/- in default to undergo S.I. for two months on each counts.

3. As per the prosecution case the appellant accused at the relevant time i.e on 16-6-1987 was an employee of Pune University. The complainant P.W. I Gopal Narsinha Rao, who hails from Andhra Pradesh came to Pune for admission of M.B.A, course. He appeared for the interview and group discussion on 14-6-1987 and thereafter met the accused, on being informed by one Chandrahas. Whereupon, the accused demanded Rs. 20,000/- for securing admission to M.B.A. course. The complainant was not in a position to pay Rs. 20,000/- therefore accused demanded Rs. 2,000/-. This demand was made on 15-6-1987 and on the next day the complainant lodged complaint to Mr. Shrotra of Anti Corruption Bureau, upon which a trap was led after following the procedure and accused was caught red handed with the currency notes of Rs. 2,000/- which was subjected to anthracene powder before the trap. Prosecution examined P.W. 1 complainant Rao, P.W. 2 panch witness Bhadbhade. One PRO of Pune university Mr. Mukund Pawar as P.W. 5

P.W. 3 Gadnkush who was working under the PRO and P.W. 7. I.O. Vasant Laxman Shrotri.

4. The defence of the accused before the trial Court was that he is a member of the scheduled caste and was leader of the union in the university. He got early promotions because of his caste, and also because of enmity with Akhil Bharatiya Vidyarathi Parishad, he was falsely implicated in this case because according to him the complainant Rao P.W. 1 was coming from Andhra Pradesh had given his address as the office of the Akhil Bharatiya Vidarathi Parishad, Pune. According to the accused the notes of Rs. 2,000/- were forcibly inserted in his pocket by (sic) accused.

5. The trial Court however disbelieved the defence and convicted the accused, as stated above, and hence this appeal.

6. It was contended by the Counsel for the appellant that this was a case of false implication due to enmity between the office bearers of Akhil Bharatiya Vidyarathi Parishad (ABVP) on one side and the accused on the other side. According to him, the PRO Mukund Pawar (P.W. 5) and Gadnkush (P.W.3) respectively were also on enemical terms with the accused because of the union rivalry. Secondly according to him the defence that he has been falsely impiicated at the instance of ABVP was clearly borne out by the record because P.W 5 in his cross-examination has admitted that soon after the police i.e. I.O. Shrotri entered the room of the PRO along with other officers and panchas, the office bearers of All Indian Students Association, namely Rajesh Deshmukh and Milind Lele entered the cabin along with 10-12 members of the said Association and amongst them reporter from Tarun Bharat was also present. This admission on the part of the P.W. 5 according to the counsel for the accused clearly shows that the trap against the accused was led at the instance of All India Students Association and that the accused was falsely implicated in the case.

7. Secondly, it was contended by the Counsel for the appellant-accused that so far as admission of M.B.A. course is concerned, the accused was not at all directly concerned, as admittedly at the relevant time the accused was working under the Restructuring Unit of the Pune University which had no concern with the work of giving admission to M.B.A. students. Thirdly, according to him the story of the P.W. 1 that he went to the accused to make enquiry about the result is falsified by the fact that the prospectus which the P.W. 1 had obtained itself contained the date of the result as 30-6-1987. Therefore, according to the Counsel for the petitioner if P.W. 1 knew or could have known the date of the result from the prospectus itself, then there was no necessity for P.W. 1 to approach the accused for knowing the date of the result. Lastly, it was contended that then there is nothing on record to show from where the P.W. 1 got Rs. 2,000/- for the purpose of laying the trap.

8. The case under the Corruption Act has two stages, firstly the demand of bribe and secondly acceptance of bribe. As rightly observed by the trial Court mere acceptance of money alleged to be bribed is not sufficient to convict the accused. So far as that part is concerned, the evidence of the prosecution is most clinching against the accused. P.W. 1 complainant, P.W. 2 Bhadbhade Panch witness, PRO P.W. 5 Mukund Pawar and the evidence of P.W. 7 I.O. Shrotri proved beyond reasonable doubt that notes of Rs. 2,000/- subjected to the anthracene powder were recovered from the person of the accused i.e. from his pocket, immediately after the signal was given by P.W.

1 complainant to the raiding party. In that regard the only question that will remain whether the defence of the accused that the notes were thrust in his pocket can be considered or the accused has brought sufficient circumstance on record to make inroads in the prosecution case and to make it liable for suspicion. That aspect will be considered subsequently.

9. The earlier part regarding the demand has to be equally proved by the prosecution beyond reasonable doubt and at this juncture this Court will have to consider the evidence of the prosecution as well as the defence of the accused that because of enmity between the two Unions he has been falsely implicated. In fact, this aspect has been rightly and properly considered by the trial Court and however this being the first appeal it will not be necessary to consider those submissions again.

10. It can be said from the material that has come on record that office bearers of All India Students Association were present, immediately after the raiding party entered the cabin of PRO. It is also clear that the newspaper reporter from Tarun Bharat was also present. P.W. 5 has given some admissions that there were two Unions in the University, one was headed by the accused and the other was represented by ABVP. However, so far as this aspect is concerned the defence is not consistent, in certain suggestions put to P.W. 2 the important witness of the prosecution, it is alleged that he is in tow with ABVP. Similar suggestions are given to other witnesses. However, when PRO P.W. 5 was under cross-examination the suggestion that was given to him is that about 10-12 member of All India Students Association entered his cabin. Now, so far this Court is concerned it has to go by the record only and as per the suggestions and specific names given in those suggestions ABVP and All India Students Association cannot be termed as one and same association. Therefore, it is clear that the accused is not certain and sure about his defence i.e. whether he was having enmity with ABVP or with All India Students Association. In ordinary circumstances this may not be considered as a material aspect of the matter but since the entire defence of the accused is based upon his being a member of scheduled caste and being a leader of the association representing the persons belonging to Pune University, he should have come with a specific case of enmity and there should have been consistency in his defence. However, this may not be a ground to refuse to consider the defence raised by the accused.

11. The most important thing that goes against the accused in this case is that P.W. 1 is admittedly not from Maharashtra nor there is anything on record to show that he was a member of ABVP or All India Students Association. From his evidence and even from the cross examination it is clear that he had come to Pune only in the month of June 1987 for the purpose of seeking admission to M.B.S. Course. There is nothing on record to show that he was active member of ABVP or All India Students Association even at Andhra Pradesh and/or that he was their office bearer.

12. In this regard, Counsel for the accused tried to contend that in the form that was submitted by P.W. 1 he has given particular address, which was the address of the office of ABVP. Even this circumstance cannot be used in favour of the accused because admittedly P.W. 1 is a student from Andhra Pradesh if seeks admission for Pune University in Pune itself then he has to give some local address and therefore merely because the address given by P.W. 1 happens to be the address of ABVP, it cannot be said that

P. W. 1 shared the intention of the office bearers of ABVP to trap the accused in a case like corruption. At least nothing in this regard is brought on record.

13. Therefore, it is clear that P.W. 1 had nothing to do with the so-called enmity between the accused or his union on one side and ABVP or All India Students Association on the other side. There is nothing to show that P.W. 1 who has come to Pune few days before the trap had shared the intention of the office bearers of the ABVP or All India Students Association to hold any trap against the accused in a case under the Prevention of Corruption Act.

14. Therefore, this P.W. 1 is having no concern with the Association or ABVP gives strong credence to his testimony that it was the accused who demanded Rs. 2,000/- for giving P.W. 1 admission to M.B.A. Course.

15. It was strongly contended by the Counsel for the accused that at the relevant time accused was not entrusted with the job of receiving admission forms for M.B.A. Course. In that regard prosecution has examined P.W. 6 Thorat, who was the Deputy Registrar (Academic) in the Pune University at the relevant time. He has stated in his evidence that at the relevant time the accused was working as a Section Officer in the Restructuring unit of Post Graduate section. But however he has also stated that at that time the accused was dealing with the work of accepting admission forms of M.B.A. admissions. It was tried to be contended by the Counsel for the accused that this witness P.W. 6 has admitted in his cross-examination that as per office order dated 11-6-1986 the accused was given the work in the Restructuring unit of the University from the date of receipt of the order i.e. from 11-6-1986.

16. It is true that from this admission of P.W. 6 it is clear that from 11-6-1986 the accused was dealing with the work of Restructuring Unit. However, benefit of this admission cannot be given to the accused, firstly, because nothing is brought in the cross examination of this witness P.W. 6 why and on what basis he has stated that at the time of the incident the accused was dealing with the work of acceptance of forms of M.B.A. Secondly, there is nothing on record to show that apart from working in the Restructuring Unit the accused could not be entrusted the work of accepting forms for M.B.A. admission.

17. As rightly observed by the trial Court, for succeeding in the case under Prevention of Corruption Act, the prosecution has to prove that the accused made demand of bribe and accepted amount pursuant to that demand. It may be that accused could not directly do any favours to the person from whom he was accepting the demand. However, if the accused is capable of doing certain work and he holds a post or position which can ordinarily be taken to be capable of giving him necessary powers then nothing more is required to be proved by the prosecution that the fact of demand, the representation made by the accused, of doing favours and the fact of acceptance of bribe.

18. It was also contended by the Counsel for the accused that as per the
narration given by P.W. 1 he met the accused in the office of the University at
about 5 p.m. or so along with Bhadbhade panch witness. Details in this regard
are given by P.W. 1 in his deposition in para 2 page 51. They are as under :

“When we were going to the office of P.R.O. situated at the backside of the
ground floor accused met us in the corridor. Accused asked me as to
what I had delayed so much. Then accused made inquiry with me about
the person with me. I told him that he is my distant relative. Then
accused called us for tea. In the canteen of the University which is
situated in the main building accused, myself and panch Bhadbhade

took tea. And then we came back to P.R.O.’s office. Accused also came there in P.R.O.’s office. He told us to wait there. Then accused went outside along with the P.R.O. After sometime P.R.O. and accused came inside the Office of P.R.O. The P.R.O. sat on his seat, opposite to him I sat on one bench and panch witness Bhadbhade sat on that bench on my right side. Accused sat to my left side. Then accused Kamble asked me whether I had brought the money. I replied in the affirmative. Then the accused told me to hand over the money. Then I took out the amount of Rs. 2000 by my right hand from the left side chest pocket of my shirt and handed over to accused. Accused accepted those notes by his right and kept it in his shirt pocket.”

19. In the background of the aforesaid deposition, it was contended by the Counsel for the accused that if accused wanted to accept bribe he had three opportunities to accept the same, in secularism i.e. without the presence of any visitor i.e. firstly when the accused met with the complainant in the corridor. Secondly when the accused took the complainant and panch Bhadbhade to tea canteen and thirdly at any place outside the office of the PRO and therefore it is most unnatural on the part of the accused to accept the amount of bribe in the office of PRO, where admittedly number of students or other persons used to visit and were visiting and some more persons Gadnkush and PRO were present.

20. This argument is no doubt an attractive but is not liable for acceptance, firstly, because the venue of accepting bribe can be selected by the person who receive the bribe. Why he selects a particular venue is known to him only and even if it is stated that prosecution must give plausible explanation for the so-called unnatural behaviour on the part of the accused in accepting bribe in presence of witnesses and not accepting bribe when he had other opportunities, the question remains that P.W. 1 complainant get strong corroboration of his evidence from the evidence of most independent witness P.W. 5 PRO. In fact this PRO Mukund Pawar has in unequivocal terms stated in his examination-in-chief that the accused accepted the amount from P.W. 1 and kept it in his pocket. The trial Court has considered the evidence of P.W. 5 PRO and has also taken into consideration suggestions of enmity given to him and even though as accepted evidence has corroboration to the evidence of P.W. 1, I do not see any reasons to discard the reasonings or logic given by the trial Court in that regard.

21. One most important circumstance in this whole prosecution case that goes against the accused is that according to P.W. 1 when P.W. 1 entered the room of PRO along with the accused, the accused asked him whether he had brought money. P.W. 1 Rao complainant replied in the affirmative, thereafter money was handed over and then accused took one paper from the PRO and asked P.W. 1 to write examination number and description. The accused himself noted down the number of P.W. 1 and then kept that paper in the shirt pocket.

22. If at all it is the case of the accused that he was falsely implicated and the amount of Rs. 2000/- was forcibly inserted in his pocket by P.W. 1 then there is no explanation at least a plausible explanation of the accused as to why he wrote the number and description of the complainant in a chit of paper and why that chit of paper is found in his pocket. On this aspect of the evidence of P.W. 1 complainant, P.W. 5 PRO has given complete and full corroboration.

23. It will therefore be clear that prosecution has succeeded in proving the demand of bribe by the accused and also succeeded in proving that the accused accepted the bribe. The explanation of the accused that money was thrust in his pocket on account of rivalry or enmity is not at all acceptable and has been rightly rejected by the trial Court.

24. For all these reasons, I do not find any merit in this appeal, the same is rejected. Accused to surrender to the Special Judge, Pune within three weeks obviously to undergo remaining part of the sentence. Prayer for stay of operation of this order or suspending the sentence is rejected.

25. Appeal dismissed.

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