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Saturday, July 4, 2015

Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act 1988 = In the present case the versions of PW1 and PW2 are completely consistent establishing the basic ingredients of demand and acceptance. The tainted currency notes were found on the person of the appellant. The explanation give by him soon after the incident through his letter dated 10.06.2003 is completely different from the theory put forth while the appellant examined himself as DW2. In our view, the demand and acceptance thus not only stand fully established but the presumption invocable under Section 20 of the Act also stood unrebutted The other two cases cited by the appellant dealt with situations where the demand and acceptance were not fully established and despite that an attempt was made to rely on the presumption invocable under Section 20 of the Act. Such is not the case in the present matter. It is further well established that where misconduct is proved, the alleged enmity between the complainant and the delinquent officer is immaterial. (See B. Hanumantha Rao v. State of A.P.[4])..

Non-Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.697 of 2011




      Chaitanya Prakash Audichya                       …. Appellant


                                   Versus


      C.B.I.                                                         ….
      Respondent




                               J U D G M E N T




      Uday Umesh Lalit, J.






      1.    This appeal by Special Leave challenges the judgment  and  order
      dated 06-12-2010 passed by the High Court of Bombay at Goa in Criminal
      Appeal No.12 of 2010 by which the High Court affirmed  the  conviction
      and sentence of the appellant under Sections 7 and 13(1)(d) and  13(2)
      of the Prevention of Corruption Act 1988 (hereinafter referred  to  as
      “the Act”).


      2.    The case of the prosecution was that PW1 Chandra Shekhar Bandari
      was sole proprietor of M/s JCS Associates, which firm was  undertaking
      construction work for governmental agencies. The firm was awarded  two
      contracts in March 2003 by Oil and Natural Gas Commission, Betul,  Goa
      and it was mandatory requirement to have a licence from the office  of
      the Assistant Labour Commissioner,  (Central)  Vasco.   PW1  therefore
      applied for requisite licence vide applications, Exts. 31 and 32  with
      necessary documents along with prescribed fees  and  the  applications
      were received in the office on 13-05-2003. According to  PW1,  he  was
      told that the applications would be  processed  within  seven  to  ten
      days.  Since  no  communication  was  received  within  ten  days,  he
      approached the appellant who was  then  working  as  Assistant  Labour
      Commissioner (Central) Vasco. PW1 was told by the appellant  that  his
      application would be duly processed.  However nothing was heard in the
      matter.


      3.    According to the case of the prosecution the  appellant  was  to
      visit the site of the proposed construction on  29-05-2003.   PW1  was
      therefore present at the site. The appellant  came  and  verified  the
      documents at the site itself. According  to  PW1,  the  appellant  was
      camping in the Rest House when PW1 went to meet him. The appellant had
      prepared Inspection Notes, Ext. 33 bearing signatures of the appellant
      and PW1. In the rest house the appellant allegedly demanded Rs.30,000/-
       towards illegal gratification for issuance of  licence  to  PW1.  The
      appellant told him to pay Rs.10,000/- by  next  day  and  the  balance
      amount of Rs.20,000/- was to be paid after issuance of the licence.


      4.    On the next day  i.e.  on  30.05.2003  PW1  decided  to  file  a
      complaint against the appellant in the office of CBI, Panaji and  gave
      written complaint, Ext. 34 which  was  received  at  1.15  pm  in  the
      office. The necessary  approval  having  been  received  at  1.56  pm,
      appropriate steps for registering the crime and to  lay  a  trap  were
      undertaken.  A request was sent to the  office  of  Assistant  General
      Manager, Bank of India, Panaji at about 2.25 pm to depute two officers
      from the Bank to act as panch witnesses. In  the  mean  time  FIR  was
      registered at  3.15  pm  in  pursuance  of  said  complaint  Ext.  34.
      Accordingly PW2 Ranjit Singh Thakur and one Karapurkar, both officials
      from the Zonal Office of Bank of India  were  sent  to  act  as  panch
      witnesses at about 4.30 pm. Pre trap proceedings were undertaken.  The
      numbers of three currency notes of Rs.1000/- each and  fourteen  notes
      of Rs.500/- each produced by PW1 were  noted.  Phenolphthalein  powder
      was applied to the currency notes. The panch witnesses  and  PW1  were
      explained and briefed about the trap and  those  currency  notes  were
      kept in the shirt pocket of PW1 with instructions not to  touch  those
      notes unless and until demand was made by the appellant.  The  members
      of the raiding party then left the office of CBI  at  about  5.30  pm.
      Since PW1 was unaware about the residential address of the  appellant,
      the party first went to his office where one of the  clerks  gave  the
      residential address of the appellant, whereafter the  party  proceeded
      to his residence.  PW1 along  with  PW2  went  to  the  house  of  the
      appellant which was situated on the ground floor of  a  building.  The
      door was opened by wife  of  the  appellant  who  told  PW1  that  the
      appellant was not available and that he had told her that in case  PW1
      came, he should be asked to  wait.   She  further  conveyed  that  the
      appellant would be back after 10.00 pm where upon PW1  told  her  that
      they would come back later and left the place. The raiding party  then
      waited till 10.00 pm.




      5.    At about 10.15 pm PW1 and PW2  went  to  the  residence  of  the
      appellant who opened the door and invited them inside.  The  appellant
      asked PW1 whether he had brought Rs.10,000/- as told by the appellant.
       Thereafter PW1 handed over the amount of Rs.10,000/-  kept   in   his
      shirt  pocket to the appellant who told him that the licence would  be
      issued on Monday i.e. 02.06.2003.   The appellant then kept the amount
      in his T-shirt pocket.  PW2 was all the while sitting with  PW1.   PW2
      then came out of the house and upon his  signaling  the  raiding  team
      went inside.  The wrist of the right hand of the appellant was caught-
      hold of and the fingers of his  right  hand  upon  being  dipped,  the
      solution turned pink.  The numbers of currency notes were verified and
      the portion of T-shirt of the appellant also turned  pink  upon  being
      dipped in the solution.  Post-trap panchnama was drawn.  The search of
      the house of the appellant conducted thereafter resulted  in  recovery
      of cash leading to registration of a separate case  against  him  with
      which we are presently not concerned.


      6.    The investigation was completed  and  appropriate  sanction  was
      granted for prosecuting the  appellant  for  the  offences  punishable
      under Sections 7 and 13(1)(d) and13(2) of the Act.  The  charges  were
      framed and the matter was tried in the court of Special Judge, Goa  at
      Madgaon vide Special Case No.6 of 2009.  The  prosecution  principally
      relied upon the evidence of PW1 and PW2 to establish  the  demand  and
      acceptance of gratification by the appellant.  PW1 also deposed to the
      facts regarding his application for issuance of licence,  his  meeting
      with the appellant in the Rest House on 29.05.2003, the demand made by
      the appellant at that time and his complaint lodged on the  next  day.
      He further deposed that the appellant had asked him  to  come  to  his
      house after office hours on 30.05.2003 along  with  bribe  amount  and
      that when the wife of the appellant opened the door of the  house  she
      said that the appellant had conveyed that in  case  PW1  came,  he  be
      asked to wait.  PW2 while supporting the version of PW1,  stated  that
      when PW1 asked about his licence, the appellant told him that in  case
      PW1 paid the agreed amount the appellant would issue  the  licence  on
      the next day.  The witness further stated that PW1 thereafter took out
      and gave  the money to the appellant which was kept by  the  appellant
      in his T-shirt pocket.  PW3 Sadanand Naik, Upper Division Clerk in the
      office of the Assistant Labour Commissioner,  Vasco  stated  that  the
      applications preferred by PW1  were  registered  on  13.05.2003,  that
      those applications were in order, that the appellant had told  PW3  to
      keep those applications pending and  that  similar  applications  were
      disposed of normally within 2-3 days.  PW6  Police  Inspector  Chonkar
      Investigating Officer deposed  about  the  various  steps  during  the
      course of  the  trap  proceedings  including  pre-trap  and  post-trap
      panchnama.


      7.    The appellant examined his immediate successor  in  office  Shri
      Karamchand as DW1 and himself as DW2.  It  was  his  case  that  after
      conducting inspections at various sites on 30.05.2003 he returned home
      at 10.30 pm and while  he  was  preparing  to  retire  two  unexpected
      visitors, namely, PW1 and PW2 came to his residence.  It  was  further
      deposed that PW1 had pushed something in his  shirt  pocket  whereupon
      the appellant put his hand in the pocket to find out what it was, when
      someone who had entered his house caught hold of his hand.  He further
      stated that after the  raid,  he  was  placed  under  arrest  and  was
      released on bail  on  04.06.2003  whereafter  he  wrote  letter  dated
      10.06.2003 to the Secretary, Ministry of Labour.


      8.    However, the version in said letter dated 10.06.2003,  on  which
      the appellant heavily relied and which was also placed  on  record  in
      the present appeal, was to the following effect:
           “After conducting inspections  when  I  returned  back  at  home
           around 10.15 pm two persons i.e. Shri Chandra Shekar along  with
           another person forcefully entered in my house and pressurized me
           to accept some bribe and demanded to serve cold  drinks.   Since
           this was an odd time and nobody was  available  nearby  to  help
           hence I acted as per their desire.  They forcefully dropped some
           rupees in my pocket and threatened me.  Since myself  was  alone
           with my wife and I was very much tired after conducting  lot  of
           inspections in remote area and due to long journey I was not  in
           a position to think much to come out from the situation.   After
           that immediately, some CBI Officers entered and  pressurized  me
           to take out the money from my pocket.   When  I  requested  them
           that this fellow has forcefully put this money in my pocket  and
           if they want they can take it from my pocket and that I  am  not
           aware also that how much money they have put in my  pocket,  the
           CBI Officers were not ready to listen to  my  request  and  they
           pressurized me to take out the money with my own hand.”




      9.    The trial court after considering the material on record came to
      the conclusion  that  the  case  against  the  appellant  stood  fully
      established and that he had abused his position as public  servant  by
      accepting illegal gratification and had committed offences as alleged.
       The trial court convicted the appellant under Section 7  of  the  Act
      and sentenced him to suffer imprisonment for one year and to pay  fine
      of Rs.10,000/-, in default whereof to suffer simple  imprisonment  for
      two months.  The appellant was also convicted under  Section  13(1)(d)
      read  with  Section  13(2)  of  the  Act  and  sentenced   to   suffer
      imprisonment for one year and to pay fine of Rs.10,000/-,  in  default
      whereof to undergo simple  imprisonment  for  two  months.   Both  the
      sentences were ordered to run concurrently.  The  appellant  preferred
      Criminal Appeal No.12 of 2010 in the High Court and the High Court  by
      the judgment under appeal confirmed the  conviction  and  sentence  as
      ordered by the trial court.  In this  appeal  by  special  leave,  the
      appellant was directed to be  released  on  bail,  which  facility  he
      continues to enjoy.


      10.   Shri R. Venkataramani, learned senior Advocate along  with  Shri
      Manu Mridul, learned Advocate  appearing  in  support  of  the  appeal
      submitted inter alia, that  (1)  the  FIR  in  the  present  case  was
      registered at 3.15 pm on 10.05.2003 whereas the services of the  panch
      witnesses were requisitioned at about 2.25 pm  i.e.  even  before  the
      registration of the crime.  (2)  In the complaint Ext.34 the place and
      time for acceptance of money as demanded by the public servant was not
      mentioned at all.  (3)  The fact that  on  the  day  in  question  the
      raiding party first went to the office also indicated the  absence  of
      fixing of such definite place and time; which makes the  case  of  the
      prosecution completely suspect.  (4)  The entire trap  was  undertaken
      without making any preliminary investigation  which  as  per  the  CBI
      manual ought to have been undertaken first.  (5)  The way the  raiding
      party had conducted itself showed it was clearly a case of the  public
      servant being chased. (6) The appellant  was  responsible  for  having
      initiated  certain  proceedings  against  PW1  and  thus  the  present
      complaint was not bona fide.


      11.   In support of these  submissions  reliance  was  placed  on  the
      decisions of this Court in  P. Parasurami Reddy v.   State  of  Andhra
      Pradesh[1],    Banarsi Dass v. State of  Haryana[2]    and   State  of
      Punjab v. Madan Mohan Lal Verma[3].






      12.   Shri P.K. Dey, learned Advocate appearing  for  the  respondent,
      while  countering  the  aforesaid  submissions  submitted  that  after
      receipt of the complaint at about 1.15 pm on 30.05.2003 the  requisite
      approval was received on fax at about 1.56 pm, whereafter  looking  to
      the allegations in the complaint that the money had to be  given  that
      very day, immediate steps were undertaken.  As part of  the  exercise,
      services of panch witnesses were requisitioned while the FIR was being
      registered.  He further submitted that since the money had to be  paid
      by 30.05.2003, because of paucity of time no preliminary investigation
      was undertaken.  Relying on the testimony of PW3 he submitted that the
      applications preferred by PW1 were ordered by the appellant to be kept
      pending and that  the  acceptance  of  gratification  on  the  day  in
      question completely clinched the matter.  Relevant currency notes were
      found in possession of the appellant and in his submission the  aspect
      of demand and acceptance also stood proved by consistent  versions  of
      PW1 and PW2.


      13.   We have gone through the  record  and  considered  the  relevant
      material.  The fact that PW1 was awarded contracts by ONGC and that it
      was a mandatory requirement to have the  requisite  licence  from  the
      office of the  Assistant  Labour  Commissioner  is  well  established.
      Further the fact that PW1 preferred applications Exts.31  and  32  for
      necessary licences is also established on record.   According  to  PW3
      the  applications  were  registered  on  13.05.2003   and   that   the
      applications were in order.  Furthermore, according  to  this  witness
      such applications would normally be dealt with in 2-3  days  and  that
      the applications were kept pending because of the instructions of  the
      appellant himself.  Though a feeble attempt was made  to  submit  that
      there were interpolations in the applications, the assertion that  the
      applications were complete and kept pending because of instructions of
      the appellant could not be controverted.  We, therefore,  accept  that
      the applications were complete in all respects and as  stated  by  PW3
      they were kept pending because of the instructions of  the  appellant.
      It is also part of the record that the site in question was  inspected
      by the appellant on 29.05.2003 as the inspection  notes  Ext.33  would
      disclose.   The assertion on part of PW1 that he had  an  occasion  to
      meet the appellant that day is well supported.  Though it  was  denied
      that any meeting had taken place in the Rest House  where  demand  was
      made as alleged, the facts as they stand unfolded, fully  substantiate
      the assertion made by PW1.


      14.   Complaint Ext.34 preferred on 30.05.2003 itself  disclosed  that
      the money was demanded and that the complainant was asked to make  the
      payment by 30.05.2003 itself.  Given the assertions in the  complaint,
      the submission that no preliminary investigation could  be  undertaken
      because of paucity of time is well founded.   At  the  same  time  the
      incongruity in the timing when services of panch witnesses were sought
      for also pales into insignificance.  It is true that the complaint did
      not state or suggest any time and place at which the  complainant  was
      supposed to fulfill the demand.  Though in   P.  Parasurami  Reddy  v.
      State of Andhra Pradesh (supra)  there are certain  observations  that
      there was no prior commitment fixing the time and place for  receiving
      the bribe, the  decision  discloses  that  there  were  various  other
      circumstances which weighed with this Court.  In any case,  the  facts
      in the present case show otherwise.
            It was asserted by the complainant in his  examination  that  he
      was asked by the appellant to see  him  at  his  residence  after  the
      office hours.  Further, when PW1 and PW2 went  to  the  house  of  the
      appellant, the conversation which PW1 had with wife of  the  appellant
      clearly shows that the visit of PW1 was quite expected.  On this issue
      there was no effective cross examination at all.  It  would  therefore
      be inconsequential if no prior commitment regarding fixing of the time
      and place for receiving the bribe was mentioned in the complaint.


      15.   In the present case the versions of PW1 and PW2  are  completely
      consistent  establishing  the  basic   ingredients   of   demand   and
      acceptance.  The tainted currency notes were found on  the  person  of
      the appellant.  The explanation give by him soon  after  the  incident
      through his letter dated 10.06.2003 is completely different  from  the
      theory put forth while the appellant examined himself as DW2.  In  our
      view, the demand and acceptance thus not only stand fully  established
      but the presumption invocable under Section 20 of the Act  also  stood
      unrebutted.


      16.   The other two cases cited by the appellant dealt with situations
      where the demand and acceptance were not fully established and despite
      that an attempt was made to rely on the  presumption  invocable  under
      Section 20 of the Act.  Such is not the case in  the  present  matter.
      It is further well established that where misconduct  is  proved,  the
      alleged enmity between the complainant and the delinquent  officer  is
      immaterial. (See B. Hanumantha Rao v. State of A.P.[4]).


      17.   In the circumstances  we  are  not  persuaded  to  take  a  view
      different from the one which weighed with the courts below.  Affirming
      the decisions taken by the High Court and the trial court, we  dismiss
      the present appeal.  The bail bonds stand cancelled and the  appellant
      shall be taken in custody forthwith to undergo the sentence awarded to
      him.




                                                                …………………………J.
                                              (A.K. Sikri)






                                                                …………………………J.
                                              (Uday Umesh Lalit)


      New Delhi,
      July 01, 2015
-----------------------
      [1]  (2011) 12 SCC 294,
      [2]  (2010) 4 SCC 450
      [3]  (2013) 14 SCC 153
      [4] 1993 Supp. (1) SCC 323

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