JUDGMENT :-
1. Heard learned APP and learned Advocate Shri Kuldeep Patil for the Respondent.
2. The cases under the Prevention of Corruption Act results into acquittal not because they are false but because of the shortcomings
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and lacunae in the prosecution evidence. Sometime lacunae remain during investigation. Sometime, the investigating officer takes utmost precaution in collecting the materials, however, still case results into acquittal due to evidence given by the witnesses. De-facto Complainant and the trap panch are the important witnesses.
3. In this case, the investigating officer has taken precaution in recording the conversation through tape recorder in between the de- facto Complainant and the Respondent. This was recorded on the date of the trap on 04/03/2009. Even transcription was prepared. However, when the disputed conversation and the sample voice was sent to the Forensic expert, he has not found it as adequate.
4. One more reason for acquittal is the panch witness, who was supposed to accompany the de-facto complainant at the time of the trap. Conveniently, he has deposed "he has not entered the cabin of the accused, but he remained outside the cabin". That is why the prosecution lost an opportunity to gather material in respect of the reiteration of the demand for money and evidencing the fact of offering the illegal gratification.
5. There is one more lacunae . One person by name Balkrishna Shivram Masure was present in the cabin of the accused at the time of
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trap. That is reflected in post trap panchnama dated 04/03/2009. However, he was not examined. For all these lacunae, the Court of the Additional Sessions Judge, Raigad-Alibag, was pleased to acquit the Respondent as per judgment dated 15/11/2013.
6. With the assistance of the both of them, I have gone through evidence of the four witnesses. They are as follows:
| PW No. 1 |
Pandurang Dehu Paradhi |
de-facto Complainant |
At page no. 59. |
| PW No. 2 |
Vinaynath Ramnarayan Mishra |
Trap panch |
At page no. 70 |
| PW No. 3 |
Sandeep Dhanaji Salunke |
The panch witness for preparing the transcript panchnama |
At page no. 101 |
| PW No. 4 |
Prabhakar Vasudeo Bhagawat |
Police Inspector |
At page no. 108 |
7. Learned APP tried her level best to convince me so that judgment of the acquittal can be upset. According to her, the conversation is recorded and even though Forensic report does not help the prosecution, there is transcript panchnama which mentions about demand for money and that is duly proved through PW No. 3. According to her, even though trap panch was not present at the time
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of the trap, the evidence of the de-facto Complainant is trustworthy and reliable. She also brought to my notice that sanction is admitted.
8. Whereas according to learned Advocate Mr. Kuldeep Patil, trap panch is examined in order to get corroboration to the evidence of the de-facto Complainant, who is treated as accomplice and unless corroborated, his evidence cannot be believed. He supports the judgment.
9. After going through the evidence and the trial Court judgment, I do not find there is merit in the appeal. The judgment is based on the proper appreciation of the evidence, and it is reasoned judgment. No interference is warranted. I will give reasons for my conclusion. Prosecution case
10. The de-facto Complainant Pandurang Paradhi is Adiwasi Thakur by caste. He is resident of Group Grampanchayat, Wardoli, Taluka Panvel. The villagers have decided to dig a well under Swajaldhara Government scheme. They have formed a Committee by name 'ग्रामीण पाणी iqjoVk o स्वच्छता समिमती माची प्रबळ (In short Sanstha)" and even though they have collected Rs. 12,000/-. They have opened an account in District Central Co-operative Bank and deposited that amount. It is Respondent, who was engineer at Panvel Panchayat Samittee and he
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prepared the estimate of Rs. 2,17,890/-. It was sanctioned by Zilla Parishad, Raigad. Two installments were issued. One is for Rs. 40,000/- and second is for Rs. 67,995/- The last installment of Rs. 85,000/- was due. At that juncture, the Respondent became greedy of the money.
11. The cheque was to be issued by the Zilla Parishad, Raigad- Alibag, whereas, the Respondent is attached to the Office of the Panchayat Samittee at Panvel. Mr. Pardhi visited the Alibag office, but he could not get the cheque. Respondent informed him to come to his office at Panvel and collect the cheque. Mr. Pardhi has visited the office. At that time demand for Rs. 4,600/- was made. Somehow, it was settled to Rs. 4,500/-.
12. Mr. Pardhi was not ready to pay the amount which was unjustified. He has decided to take the help of the Anti Corruption Bureau and that is why, he lodged the complaint with the office at Alibag on 03/03/2009. It was recorded by P.I. Shri Bhagwat. Trap was organized on 04/03/2009. PW No. 2 is one of the witness.
13. Initially, they gathered at the Government rest house, Panvel, and then they went to the Office of the Respondent. P.I. Bhagwat was cautious enough to give voice recorder to Mr. Pardhi. Mr. Mishra
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defined the instructions of Mr. P.I. Bhagwat. Mr. Pardhi went on the first floor to the office. Whereas Mr. Mishra stayed at ground floor. Unfortunately, the Respondent was not found. Mr. Pardhi called him on phone but misfortune of the Respondent, it was recorded on voice recorder. It was about 5.00 pm. This recording was transcripted by way of panchnama and it is on page no. 106. The Respondent told Mr. Pardhi that he is at Karjat office and asked him to come in his office alongwith the amount of the illegal gratification. Mr. Pardhi went to his office. The voice recorder was very much with him. Here again it is misfortune of the prosecution because though Mr. Pardhi and PW No. 2 went together to the Office and Mr. Pardhi and Mr. Mishra witnessed the entire incident as told by Mr. Pardhi, when the turn of Mr. Mishra had come for giving evidence, conveniently, he had chosen himself to remain outside the cabin. He has stated these facts in his chief examination only. He was not declared hostile. That is why evidence of the Mishra does not throw any light about what has happened inside the cabin of the Respondent. Inside the cabin, as per the evidence of Mr. Paradhi, Respondent does inquire about the money, and it is parted away and kept in his drawer. He also handed over the cheque of Rs. 4500/- to Mr. Pardhi. After this incident Mr. Pardhi came out and gave
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a signal. Then P.I. Bhagwat entered on the scene and completed the formalities of examination through ultra violet. The identity of the notes was established. That is why he lodged the complaint for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act.
14. Learned trial Judge has emphasized on certain improvements made by the de-facto Complainant in his evidence. It is true that the demand made earlier to trap is generally not witnessed by any one except de-facto Complainant. The demand of the money by the Respondent on 26/02/2009 through phone call is not reflected in the complaint filed with the ACB Office on 03/03/2009. In fact is it not on 26/02/2009, but it is on 27/02/2009. However, during evidence he has given date of that incident as 26/02/2009 that is earlier to trap. There are two instances where demand is made. About receiving the call on the date of the trap on 04/03/2009 was not stated by Mr. Pardhi in Police statement recorded after the trap.
15. After the trap in fact this was phone call wherein the Respondent instructed Mr. Pardhi to come to his office alongwith an amount of Rs. 4,500/-. The prosecution claims it as verification of the demand.
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16. As said above, there is no consistency in between Mr. Pardhi and Mr. Mishra evidence on the point the events that took place inside the office of the Respondent. Lastly, the prosecution has not examined Masure who was present inside the cabin of the Respondent at the time of the trap. This could have strengthened the case of the prosecution.
17. The learned Judge has considered the fact that the forensic report does not support the prosecution case because questioned voice samples falls below the probable identification or probable elimination confidence level. Hence, analyzer could not give a concrete opinion.
18. The presumption under Section 20 of the Prevention of Corruption Act can be invoked only when the foundational facts are proved. As said above, there is variance in the evidence of the two material witnesses, it cannot be said that their evidence is trustworthy. The findings are correct. No interference is warranted. There is no merit in the appeal. Hence, is dismissed.
[S. M. MODAK, J.]
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