Sayyed Shabiralli
Hafizali Vs. State of Maharashtra [2009] INSC 877 (4 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1053 OF 2005
Sayyed Shabiralli Hafizali .....Appellant Versus State of Maharashtra
...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of a learned Single of the Bombay High Court,
Aurangabad Bench upholding the conviction of the appellant for offence
punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of
Corruption Act, 1947 (in short the `Act'). The learned Special Judge,
Ahmednagar, had found the accused-appellant guilty and convicted him as
aforenoted and to suffer imprisonment for one year and to pay a fine of
Rs.1,000/- with default stipulation.
2.
Background
facts in a nutshell are as follows:
The complainant Mhatardeo
Dagadu Dahale, resident of Dule (Chandgaon) was running a tailoring shop by
name 'Surekha Ladies Tailors' at Pathardi. The land bearing S.No.92/1 situated
at village Dule (Chandgaon) was owned by complainant's father. He wanted to
install electric pump set on the well situated in the said land. For that
purpose, he had made an application to the office of Maharashtra State
Electricity Board (in short `M.S.E.B.'), Pathardi. However, the M.S.E.B. did
not take any cognizance of the said application. Complainant's father,
therefore, submitted another application in the year 1980. Thereafter survey of
the land and in particular the place where the electric motor was to be
installed was carried out and the complainant was asked to carryout the
preliminary requirements and to submit the test report. Accordingly, the
complainant had submitted the test report on 12.11.1986. As the complainant's
father was of old age, complainant was in fact attending all the work in
connection with the agriculture operations and allied work. As per the Rules of
the M.S.E.B., it was necessary for the complainant to deposit certain charges
for receiving the material required for the installation and connection of the
electric motor. The complainant, therefore, deposited Rs.610/- in A.D.C.C.
Bank, Ahmednagar on 26.12.1984. In spite of such compliance on the part of the
complainant and his father, the M.S.E.B. had not provided the necessary
material and connection. For getting the material released from the M.S.E.B.
store, it was necessary to issue gate pass. For that purpose, the complainant
had met the accused, who was then working as Sub-Engineer in the office of
M.S.E.B., Rural Sub Division, Pathardi and the accused had told him that he
would be sending one Channe, Wireman. However, nobody turned up till
19.11.1986. Hence, the complainant contracted the accused on that day.
However, even on that
day, the gate pass was not issued in favour of the complainant. On 26.11.1986,
the accused went to the shop of the complainant and told him that he would
issue the gate pass, but for that purpose, the complainant will have to pay
Rs.100/- to the accused. The complainant told him that he had not that much
amount to pay at that time and that he would collect the amount and give him
within a short period. Thereafter on 02.12.1986, the complainant went to the
house of the accused at about 9.00 to 9.30 p.m., at that time also, the accused
told him that on the next day, while going to his house for meals from the
office, he would hand over the gate pass to him and that he should pay him
Rs.100/- at that time. The complainant thereafter went to the office of Anti
Corruption Bureau at Ahmednagar and narrated the entire incident to Mr. Joshi,
Deputy Superintendent of Anti Corruption Bureau and lodged a complaint wherein
he specifically stated that the accused demanded bribe of Rs.100/- for issuing
gate pass in favour of the complainant and that he would come to his shop the
next day in the afternoon to collect the amount and to hand over the gate pass.
The complainant was, therefore, asked to come to the Anti Corruption Bureau on
the next day. Accordingly, the complainant went to the said office on the next
day. At that time, the police called two panchas by names Vavhal and Godbole.
The search of the complainant was taken in the presence of panchas and at that
time, complainant handed over an amount of Rs.100/- to which police applied
anthracene powder and gave necessary instructions to the complainant as well as
to the panchas. Except that amount of Rs.100/- and another sum of Rs.18/-,
nothing was kept on the person of the complainant. Then the police, panchas and
complainant proceeded in a Jeep to Pathardi. They halted the Jeep at a distance
of about 1 km.
from the
complainant's shop and then pancha witness Vavhal and complainant went to his
shop.
They waited there
till about 3/3.30 p.m. However, the accused did not turn up. They, therefore,
informed this fact to Deputy Superintendent of Anti Corruption Bureau, Mr.
Joshi. With his permission, the complainant and the pancha witness Vavhal then
went to the office of M.S.E.B., Pathardi to find out as to whether the accused
was there. However, the accused was not found there but they were informed that
accused would be coming within 15/20 minutes. Hence, both of them sat on the
'Ota', which was in front of the said office. At about 5.30 p.m., complainant's
father went to that place and informed the complainant that Sayyedsaheb i.e.
the accused has come to his shop.
The complainant and
pancha witness Vivhal therefore went to the shop of the complainant. The
accused was sitting in the complainant's shop. After reaching there,
complainant asked the accused, whether he has done his work. The accused
answered in the affirmative and asked the complainant as to what about him. On
that, the complainant answered in the affirmative. Then the accused took out a
folded chit, which is proved to be the gate pass, (Exhibit-21) and handed over
the same to the complainant. Complainant took out the marked currency note of Rs.50,
two currency notes of Rs.20/- and one currency note of Rs.10, in all Rs.100/-
to which anthracene powder was applied, and gave them to the accused. The
accused put the said amount in the pocket of his Manila. The complainant put
Ext.21 in the pocket of the Manila in which initially he had kept the marked
currency notes. The complainant then immediately went out of the shop and gave
signal. Thereupon the police constables and Deputy Superintendent Mr. Joshi
entered the shop.
The police Constables
held the hands of the accused and Deputy Superintendent Mr. Joshi asked the
accused as to where the bribe amount was. Thereupon, the accused handed over
the amount of Rs.100/- put by him in his pocket. Police then carried out the
post-trap panchanama in which it was noted that the numbers of the marked
currency notes mentioned in the pre-trap panchanama and post-trap panchanama
were the same. Besides this, anthracene powder was noticed at the fingertips of
the accused so also at some portion of the Manila of the accused. The police
also attached the gate pass, Exhibit-21. The copy of the panchanama was handed
over to the accused and accused signed the same for having received the copy.
Thereafter, Mr. Joshi, Deputy Superintendent recorded the statements of complainant
and some other witnesses and after obtaining necessary sanction for prosecution
and on completing the investigation submitted charge sheet against the accused
in the Court of Special Judge, Ahmednagar.
As the accused
pleaded innocence, trial was held. Four witnesses were examined including the
complainant, panch witness, Assistant Engineer and Deputy Superintendent of
Police, Anti Corruption Bureau. The accused examined his wife as a defence
witness. His stand was that his wife had given clothes for stitching to the
complainant and he had gone to his shop to collect the money for the lost
cloth. After considering the evidence, the trial Court concluded that the
prosecution has fully established the demand of bribe. An appeal was preferred
before the Bombay High Court.
Stand of the accused
before the High Court was that since money was not given by the complainant to
the accused in the office but at the shop of the complainant, it proves that
the defence version is correct. The High Court noted that admittedly the
complainant was running a tailoring shop and complainant's father had submitted
an application for getting electricity connection. The necessary test report
was filed on 12.11.1986 and the necessary charges had been deposited on
26.12.1984 but the necessary gate pass was not given. The complainant's version
that as regards demand of bribe was not shaken or shattered in cross
examination the same was fully corroborated by the complaint filed on
2.12.1986. The evidence of Deputy Superintendent of Police, Anti Corruption
Bureau fully established the same as the High Court noted that the sanction
order, pre trap panchnama of the place of offence and gate passi were produced.
Referring to Section
4 of the Act the High Court held that the prosecution version was established
and, therefore, there was no merit in the appeal.
3.
Learned
counsel for the appellant submitted that the defence version was more probable.
This is a case where
the complainant had not gone to the office of the accused to hand over the
money but the accused had gone at the shop of the complainant, this itself
creates a doubt about the version of the prosecution.
4.
Learned
counsel for the respondent-State supported the judgment.
5.
It
is of significance that in the complaint dated 2.12.1986 the complainant had
specifically stated that the accused shall be coming for handing over the gate
pass and for taking the money i.e. bribe amount on 3.12.1986 in the afternoon.
Therefore, as rightly noted by the High Court if really the complainant had
issued any receipt or chit in respect of the cloth and had told the accused to
bring that chit or receipt, it is only after obtaining the said chit he would
pay amount of Rs.100/-. Then he would not have lodged the complaint because at
that time he had no idea as to what to do in the situation on 3.12.1986.
Admittedly, when the post trap panchnama was drawn the accused was present
there. So also the panch witness Sayajirao was present. After drawing the
panchnama a copy of the same was immediately given to the accused. Not only
that, he made endorsement on the original panchnama for having received a copy.
If really the accused had handed over the receipt of the cloth to the
complainant and accepted Rs.100/- as a price of the lost cloth, he would have
told panchas as well as to the police that that the receipt has been handed
over to him and the said fact be mentioned in the panchanama but this has not
happened. There was no mention about the accused having stated to have brought
the chit of the cloth.
6.
Section
4 of the Act reads as follows:
"Section 4.
Presumption where public servant accepts gratification other than legal
remuneration - (1) Where in any trial of an offence punishable under Section
161 or section 165 of the Indian Penal Code, or of an offence referred to in
clause (a) or clause (b) of sub-sec. (1) of S.5 of this Act, punishable under
sub-section (2) thereof, 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 the said section 161, or, as the case may be, without
consideration or for a consideration which he knows to be inadequate.
(2) Where in any
trail of an offence punishable under Section 165A of the Indian Penal Code or
under clause (ii) sub-section (3) of Section 5 of this Act, it is proved that
any gratification or any valuable thing has been given or offered to be given
or attempted to be given by an. accused person, it shall be presumed unless the
contrary is proved that he gave or offered to give or attempted to give that
gratification or that valuable thing, as the case may be, as a motive or
reward, such as is mentioned in Section 161 of the Indian Penal Code or, as the
case may be, without consideration or for a consideration which he knows to be
inadequate.
(3) Notwithstanding
anything contained in subsection (1) and (2), the Court may decline to draw the
presumption referred to in either of the said sub-section, if the gratification
or thing, aforesaid is, in its opinion, so trivial that no inference or
corruption may fairly be drawn."
7.
In
State of Assam v. Krishna Rao and Ors. (AIR 1973 SC 28) it was observed as
follows:
"Where it is
proved that a gratification has been accepted the presumption under Section 4
of the Prevention of Corruption Act shall at once arise, it is a presumption of
law and it is obligatory on the Court to raise it in every case brought under Section
4. The words, "unless the contrary is proved" mean that the
presumption raised by Section 4 has to be rebutted by proof and not by bare
explanation which may be merely plausible. The required proof need not be such
as is expected for sustaining a criminal conviction, it needs only to establish
a high degree of probability."
8.
The
evidence on record has clearly established the accusations and the trial Court
and the High Court have rightly relied on the same.
9.
In
the instant case the occurrence took place on December 2, 1986. At that point
of time it cannot be said that the gratification was a trivial thing as
referred to under Section 4.
10.
Above
being the position, there is no merit in this appeal which is accordingly
dismissed.
.....................................J.
(Dr. ARIJIT PASAYAT)
.......................................
J. (HARJIT SINGH BEDI)
.....................................J.
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