Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1352 OF 2009
Nayankumar Shivappa Waghmare ... Appellant
Versus
State of Maharashtra … Respondent
J U D G M E N T
PRAFULLA C. PANT, J .
This appeal is directed against judgment and order dated
6.2.2009 passed in Criminal Appeal No. 135 of 1997 by the
High Court of Judicature at Bombay (Bench at Aurangabad)
whereby said Court has reversed the acquittal recorded by
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
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2015.02.13
17:06:10 IST
Reason:
13(2) of the Prevention of Corruption Act, 1988 and sentenced
him to rigorous imprisonment for a period of one year and
2
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 heard learned counsel for the parties and perused the
record.
3. According to prosecution, the appellant was working in
the Finance Section of Zilla 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 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 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 Zilla Parishad to make enquiries regarding her
sister’s pension and GPF papers. The appellant, who was
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working in 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 Zilla 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 (complainant) to obtain ‘No Dues Certificate’ from
Block Development Officer, Panchayat Samiti, Bhoom. He also
disclosed the complainant that there was missing entry in
respect of year 1987-88 in the GPF statement. On this, the
complainant brought letter of her sister stating that she was
ready to accept the amount of GPF excluding the missing
credits of the year 1987-88. ‘No Dues Certificate’ from the
Block Development Officer was also obtained and submitted to
the office of the Zilla Parishad. When again contacted, the
appellant told Anant Deshmukh that GPF clearance would
require further 2-3 months, but if the complainant pays
Rs.1,000/- 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
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amount. On 30.1.1993, complainant met the appellant
Nayankumar Shivappa Waghmare (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 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.1,000/- would be required separately for
pension work which would take about two-three months time.
On this, complainant PW-9 Anant Deshmukh went to Anti
Corruption Bureau and met PW-12 P.I. 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. A trap was laid by team led by Deputy
Superintendent of Police Mr. Shetkar to apprehend the
appellant on the same day as the appellant had asked the
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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 Zilla 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 Zilla Parishad Office, the appellant asked
him to come out and both of them with Bhutekar went to
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 signaled 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
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appellant were seen in the light of ultra violet 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. A complaint (Ex. 41) was made by PW-12 P.I.
Gadade and First Information Report was lodged. After
investigation, all the relevant papers were submitted before the
Chief Executive Officer of Zilla Parishad for sanction for
prosecution of the appellant, and the same was obtained
against the accused and charge-sheet was submitted in
respect of offence punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of the Prevention of Corruption Act,
1988.
4. It appears that after hearing the parties, the trial court
framed charge against Nayankumar Shivappa Waghmare in
respect of offences punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of Prevention of Corruption Act, 1988,
7
on 15.3.1996, to which he pleaded not guilty, and claimed to
be tried.
5. On this, prosecution got examined PW-1 Uttam Bhutekar
(panch witness), PW-2 Bhimrao (Junior Assistant in Zilla
Parishad), PW-3 Sahebrao Wanve (Panch witness), PW-4Riyaz,
PW-5 Bharat, PW-6Nagnath (all three officials of Zilla
Parishad), PW-7 Rajiv (Chief Executive Officer of Zilla
Parishad), PW-8 Baburao (Chief Accountant), PW-9 Anant
Deshmukh (complainant), PW-10 Mirabai (pensioner whose
GPF papers were processed), PW-11Ramdas (police Head
Constable) and PW-12, P.I. 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
complainant, pension papers of Mirabai were searched.
However, as to the rest of evidence regarding demand and
acceptance of bribe, the accused stated that the same was not
true. No evidence in defence was adduced.
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6. The trial court, after considering the evidence on record
and submissions of the parties, acquitted the accused
(Nayankumar Shivappa Waghmare) from the charge of 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.
7. 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 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
9
was directed to undergo rigorous imprisonment for a further
period of six months. Hence this appeal by the convict.
8. 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 Zilla 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
Zilla 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 1987-88. PW-9 further told that Rs.1,000/- were
demanded by the accused (appellant) for clearance of amount
10
of GPF. He also stated that he gave Rs.200/- to the accused,
and for 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 Zilla 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 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.
9. 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
11
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 P.I. Nandkumar
Gadade.
10. The oral testimony of above witnesses gets further
corroboration also from the panchnama (Ex. 22), complaint
(Ex. 23), second panchnama (Ex. 24) and other papers on
record.
11. 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.
12. 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
12
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 offence punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 is 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.
13. 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 (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
13
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.
14. 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 the interest and 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.
15. 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
14
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 the 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.
15
16. In Himachal Pradesh Administration v. Om
1
Prakash , explaining the expression “reasonable doubt”, this
Court has observed as under: -
“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 as
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 a 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
1
(1972) 1 SCC 249
16
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.”
17. In view of law laid down by this Court, as above, and
after considering evidence on record in the light of Section 20
of 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 the case of Niranjan
Hemchandra Sashithal and another v. State of
2
Maharashtra , this Court has discussed gravity of the
corruption cases in 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.”
2
(2013) 4 SCC 642
17
18. For the reasons, as discussed above, after going through
the record of the case, and considering the rival submissions
of learned counsel for the parties, we find no reasons to
interfere with the impugned order 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.
19. 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.
………………..…………….J.
[Dipak Misra]
………………..…………….J.
[Prafulla C. Pant]
New Delhi;
February 13, 2015.
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ITEM NO.1A COURT NO.6 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1352/2009
NAYANKUMAR SHIVAPPA WAGHMARE Appellant(s)
VERSUS
STATE OF MAHARASHTRA Respondent(s)
Date : 13/02/2015 This appeal was called on for judgment today.
For Appellant(s) Mr. Sudhanshu S. Choudhari,Adv.
Mr. Vatsalya Vigya, Adv.
For Respondent(s) Mr. Amol Chitale,Adv.
Mr. Aniruddha P. Mayee, Adv.
Mr.Charudatta Mahindrakar, Adv.
Mr. A. Selvin Raja, Adv.
Hon'ble Mr. Justice Prafulla C. Pant pronounced the judgment
of the Bench comprising Hon'ble Mr. Justice Dipak Misra and His
Lordship.
The appeal is dismissed in terms of the signed reportable
judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)