Nayankumar Shivappa Waghmare v. State Of Maharashtra .

Prafulla C. Pant, J.— This appeal is directed against the judgment and order dated 6-2-2009 passed in State of Maharashtra v. Nayankumar Shivappa Waghmare 2009 SCC OnLine Bom 193 by the High Court of Judicature of Bombay (Bench at Aurangabad) whereby the said Court has reversed the acquittal recorded by the Special Judge, Osmanabad, in Special Case No. 3 of 1993 and convicted the present appellant, Nayankumar Shivappa Waghmare under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to rigorous imprisonment for a period of one year and directed to pay fine of Rs 10,000, and in default of payment of fine, six months further rigorous imprisonment is directed to be served.

2. We have heard the learned counsel for the parties and perused the record.

3. According to the prosecution, the appellant was working in the Finance Section of Zila Parishad, Osmanabad. He was handling the cases of General Provident Fund (GPF) and pension cases of retired members of staff. PW 10, Mirabai N. Deshpande, who served as the Chief Sevika with the Integrated Child Development Scheme at Bhoom, opted for her voluntary retirement due to her physical ailments, in July 1992. She submitted her pension papers. She was an issueless widow. Her brother PW 9, Anant Deshmukh, who was an ex-serviceman, was requested by her to pursue her papers. He used to work with a private company in Pune. PW 9 Anant Deshmukh, between November 1992 to January 1993, went several times to the Office of Zila Parishad to make enquiries regarding his sister's pension and GPF papers. The appellant, who was working in the said office, told him that the pension papers were searched but could not be located. On this, PW 9 went to Bhoom and obtained outward number of forwarding letter addressed to Zila Parishad, Osmanabad along with which the pension papers of Mirabai were sent. Thereafter, pension and GPF papers were located, and the appellant told PW 9 Anant Deshmukh (the complainant) to obtain “No-Dues Certificate” from the Block Development Officer, Panchayat Samiti, Bhoom. He also disclosed to the complainant that there was missing entry in respect of year 1987-1988 in the GPF statement. On this, the complainant brought letter of his sister stating that she was ready to accept the amount of GPF excluding the missing credits of the year 1987-1988. “No-dues certificate” from the Block Development Officer was also obtained and submitted to the Office of the Zila Parishad. When again contacted, the appellant told Anant Deshmukh that GPF clearance would require further 2-3 months, but if the complainant pays Rs 1000 to him, it can be done within 8-10 days. Reluctantly, Anant Deshmukh gave Rs 200 to the appellant, who asked him to contact after five-six days with rest of the amount.

4. On 30-1-1993, the complainant met the appellant Nayankumar Shivappa Waghmare (the accused) at 10.45 a.m. The appellant told him that the work has progressed, and papers are lying for signatures of the authority concerned, and asked him to come at 2.30-3.00 p.m. with the balance amount. The complainant told that he could arrange Rs 300 only and remaining Rs 500 be allowed to be paid when the GPF amount is encashed. The appellant asked the complainant that further Rs 1000 would be required separately for pension work which would take about two-three months' time. On this, the complainant PW 9 Anant Deshmukh went to Anti-Corruption Bureau and met PW 12, PI Nandkumar Gadade, and complained about the corruption. PW 12 got the complaint reduced into writing whereafter panch witnesses, namely, PW 1, Uttam Bhutekar and PW 3, Sahebrao Wanve, were called from the Irrigation Office. The written complaint was read over to the witnesses in the presence of Anant Deshmukh.

5. A trap was laid by the team led by the Deputy Superintendent of Police Mr Shetkar to apprehend the appellant on the same day as the appellant had asked the complainant to come with money in the afternoon. After applying anthracene powder in the three currency notes which were to be handed over by the complainant to the appellant, and preparing panchnama to this effect, as per the plan, PW 9 Anant Deshmukh went to the Office of Zila Parishad along with witnesses Uttam Bhutekar and Sahebrao Wanve. Bhutekar was asked to remain present with Anant Deshmukh during the conversation between him and the accused. Wanve was to follow the three from some distance. When the complainant reached Zila Parishad Office, the appellant asked him to come out and both of them with Bhutekar went to a nearby tea stall. PW 9 Anant Deshmukh, PW 3 Sahebrao Wanve and PW 1 Uttam Bhutekar took the tea and Deshmukh made the payment for it. Thereafter, Deshmukh handed over tainted currency notes to the appellant which he accepted with his right hand and inserted the notes with left hand in his pocket. As per the plan Deshmukh signalled the raiding party by moving his hand on the head. The raiding party immediately rushed and caught hold of both the hands of the appellant and in the presence of the witnesses, hands of the appellant were seen in the light of ultraviolet lamp and found that the hands showed bluish sparkle due to the anthracene powder with which currency notes were tainted. Three currency notes of Rs 100, bearing Nos. 5BQ 075977, 9CA 767761 and 0PN 648332, accepted by the appellant were seized by trap/raiding police party and a panchnama was prepared.

6. A complaint (Ext. 41) was made by PW 12 PI Gadade and first information report was lodged. After investigation, all the relevant papers were submitted before the Chief Executive Officer of Zila Parishad for sanction for prosecution of the appellant, and the same was obtained against the accused and charge-sheet was submitted in respect of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

7. It appears that after hearing the parties, the trial court framed charge against Nayankumar Shivappa Waghmare in respect of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 on 15-3-1996, to which he pleaded not guilty, and claimed to be tried.

8. On this, the prosecution got examined PW 1 Uttam Bhutekar (panch witness), PW 2 Bhimrao (Junior Assistant in Zila Parishad), PW 3 Sahebrao Wanve (Panch Witness), PW 4 Riyaz, PW 5 Bharat, PW 6 Nagnath (all three officials of Zila Parishad), PW 7 Rajiv (Chief Executive Officer of Zila Parishad), PW 8 Baburao (Chief Accountant), PW 9 Anant Deshmukh (complainant), PW 10 Mirabai (pensioner whose GPF papers were processed), PW 11 Ramdas (Police Head Constable) and PW 12 PI Nandkumar Gadade (head of the raiding party). Oral testimony of the witnesses and documentary evidence was put to the accused, in reply to which he admitted that Mirabai N. Deshpande (PW 10) did seek voluntary retirement and the fact that on the request of the complainant, pension papers of Mirabai were searched. However, as to the rest of the evidence regarding demand and acceptance of bribe, the accused stated that the same was not true. No evidence in defence was adduced.

9. The trial court, after considering the evidence on record and submissions of the parties, acquitted the accused (Nayankumar Shivappa Waghmare) from the charge of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 vide judgment and order dated 18-1-1997, holding that the charge is not proved beyond reasonable doubt.

10. The State of Maharashtra challenged the order passed by the trial court recording acquittal of the accused before the High Court. The High Court, after hearing the parties, came to the conclusion that the trial court has erred in law in acquitting the accused giving him benefit of doubt. It held that the charge is proved on the record against the accused Nayankumar Shivappa Waghmare and convicted and sentenced him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, to rigorous imprisonment for a period of one year and directed to pay fine of Rs 10,000, and in default of payment of fine the convict was directed to undergo rigorous imprisonment for a further period of six months. Hence this appeal by the convict.

11. On perusal of the evidence we find that PW 9 Anant Deshmukh has stated that Mirabai (PW 10) was his elder sister who sought voluntary retirement on 15-7-1992 on account of her illness. She was an issueless widow. It was further stated by this witness that Mirabai used to live with him, and she asked him to pursue her pension papers and amount relating to her GPF dues. The witness further told that from November 1992 he started making enquiries from the office of Zila Parishad, Osmanabad regarding the post-retiral dues of his sister. He narrated in detail as to his meetings with the appellant who used to work in the office of Zila Parishad. He further told that on being asked he obtained “no-dues certificate” from the office of Block Development Officer, and letter from his sister regarding her readiness to accept the amount of GPF without contribution of the year 1987-1988. PW 9 further told that Rs 1000 were demanded by the accused (the appellant) for clearance of amount of GPF. He also stated that he gave Rs 200 to the accused and for the rest of the sum it was agreed that the same would be paid after a week. The witness further narrated that on 30-1-1993 when he again went to the office of Zila Parishad, he was asked to come again around 3.00 p.m. with balance Rs 800, and he was further told that Rs 1000 would be separately required for clearance of pension papers which would take another two to three months. PW 9 Anant Deshmukh further stated that, on this, he went to the Anti-Corruption Bureau and made a complaint. He further told that he came along with panch witnesses and vigilance team, and trap was laid. He further told that he gave Rs 300 to the accused after having tea in the nearby tea stall on which trap party apprehended and recovered amount from the accused. However, at the end of the cross-examination this witness stated that the accused did not demand the amount.

12. The statement of PW 9 Anant Deshmukh, as recorded in the examination-in-chief, regarding the payment of bribe and recovery of three currency notes, is fully corroborated from the statements of PW 1 Uttam Bhutekar and PW 3 Sahebrao Wanve. The prosecution story is further corroborated from the statements of PW 10 Mirabai and PW 12 PI Nandkumar Gadade.

13. The oral testimony of the above witnesses gets further corroboration also from the panchnama (Ext. 22), complaint (Ext. 23), second panchnama (Ext. 24) and other papers on record.

14. The learned counsel for the appellant argued before us that since the trial court has acquitted the appellant giving him benefit of reasonable doubt, the High Court erred in law in convicting him as it is settled principle of law that where two views are possible, the finding of the trial court should not be disturbed.

15. The above argument advanced on behalf of the appellant, in the present case, is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial court can be corrected. The perusal of the impugned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial court has erred in law in coming to the conclusion that the charge in respect of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is not established. The High Court has clearly held that the trial court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial court.

16. Our attention has been drawn on behalf of the learned counsel for the appellant to the last sentences in the cross-examination of PW 9 Anant Deshmukh (the complainant) wherein he has taken a somersault and told that the amount was not demanded by the accused. It is on the basis of this part of the statement on which benefit of reasonable doubt appears to have been given by the trial court. It is contended on behalf of the appellant that demand of bribe is not proved on the record.

17. In our opinion, considering the fact that the statement of the key witness PW 9 Anant Deshmukh was recorded almost after three years of the incident, and the cross-examination was not done on the same day when the examination-in-chief was recorded, there was every reason to believe that the witness had lost interest and was won over by the accused. There is nothing on record as to why if the amount was not demanded and the papers relating to post-retiral dues were being cleared by the accused, PW 9 Anant Deshmukh made a written complaint to the Anti-Corruption Bureau on the date when his sister's papers were being cleared.

18. In this connection, we agree with the High Court that the trial court while appreciating the prosecution evidence completely ignored the presumption required to be taken under sub-section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. Apart from this suggestion made on behalf of the accused to PW 1 Uttam Bhutekar, PW 3 Sahebrao Wanve and PW 9 Anant Deshmukh, it is clear that the accused has admitted that three currency notes were recovered from his pocket by the raiding party. In such circumstances, in the present case, there was no question of giving benefit of reasonable doubt to the accused.

19. In H.P. Admn. v. Om Prakash (1972) 1 SCC 249, explaining the expression “reasonable doubt”, this Court has observed as under:

“7. … It is not beyond the ken of experienced, able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt—the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy—though unwittingly it may be—or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is ‘not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in vain and idle scepticism’. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether.”

20. In view of the law laid down by this Court, as above, and after considering the evidence on record in the light of Section 20 of the Prevention of Corruption Act, 1988, we hold that the trial court did err in law in giving benefit of reasonable doubt in the present case relating to corruption. In Niranjan Hemchandra Sashittal v. State of Maharashtra (2013) 4 SCC 642, this Court has discussed the gravity of the corruption cases in the following words:

“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.”

21. For the reasons, as discussed above, after going through the record of the case, and considering the rival submissions of the learned counsel for the parties, we find no reasons to interfere with the impugned order 2009 SCC OnLine Bom 193 passed by the High Court convicting and sentencing the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Therefore, the appeal is liable to be dismissed.

22. The appeal is accordingly dismissed. The appellant Nayankumar Shivappa Waghmare is on bail. His bail is cancelled. He shall surrender before the court concerned to serve out the remaining part of the sentence.