NAYANKUMAR SHIVAPPA WAGHMAREversusSTATE OF MAHARASHTRA

                    [2015]2S.C.R.171



         NAYANKUMAR SHIVAPPA WAGHMARE                          A
                             v.
                STATE OF MAHARASHTRA
            (Criminal Appeal No .. 1352 of 2009)
                   FEBRUARY 13, 2015
                                                               B
     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

     Prevention of Corruption Act, 1988 - ss. 7 and 13(1 )(d)
rw s. 13(2), 20 - Public servant taking gratification for an
official act - Complainant alleging that the appellant-public
servant demanded and accepted bribe from him for clearing C
his sister's pension papers and GPF dues - Trial court
acquitting the accused from the charge of offence punishable
ulss. 7 and 13(1)(d) rw s. 13(2) holding that the charge is not
proved beyond reasonable doubt - However, High Court
convicted and sentenced him ulss. 7, 13(1 )(d) rw s.13(2) - D
Interference with - Held: Not called for - Apart from the
suggestion made on behalf of the accused to the prosecution
witnesses and the complainant, the accused admitted that
three currency notes were recovered from his pocket by the E
raiding party - After considering evidence on record in the
light of s. 20, the trial court erred in law in giving benefit of
reasonable doubt to the accused.

    Dismissing the appeal, the Court
                                                               F
    HELD: 1.1 After going through the evidence on
record it is not a case where two views are possible. As
such, there is no illegality in the impugned order
reversing the order of acquittal recorded by the trial
court. [Para 12] [179-C-D]                               G

    1.2 Considering the fact that the statement of the key
witness PW-9 was recorded almost after three years of
the incident, and the cross-examination was not done

                            171                                H
172        SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A 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
B post retiral dues were being cleared by the accused, PW-
  9 made a written complaint to the Anti Corruption Bureau
  on the date when his sister's papers were being cleared.
  [Para 14] [179-F-H]
c       1.3 The view of 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 CorruptiQn
   Act, 1988, is accepted. Apart from the suggestion made
 o on behalf of the accused to the PW-1, PW-3 and PW-9, it
   is clear that the accused admitted that three currency
   notes were recovered from his pocket by the raiding
   party. After considering evidence on record in the light
   of Section 20 of Act, the trial court did err in law in giving
 E benefit of reasonable doubt to the accused. Thus, there
   are no reasons to interfere with the impugned order
   passed by the High Court convicting and sentencing the
   appellant u/ss. 7 and 13(1)(d) read with Section 13(2) of
   the Act. [Paras 15,17,18] [180-A-B, D-E; 181-G-H; 182-E]
 F
        Himachal Pradesh Administration v. Om Prakash 1972
   (2) SCR 765: (1972) 1 SCC 249 - relied on.
         Niranjan Hemchandra Sashitha/ and another v. State of
      Maharashtra 2013 (4) SCR 767: (2013) 4 SCC 642 -
G referred to.

                       Case Law Reference
         1972 (2) SCR 765         Relied on.       Para ~6
 H       2013 (4) SCR 767         Referred to.     Para 17
         NAYANKUMAR SHIVAPPAWAGHMARE                        173
            v. STATE OF MAHARASHTRA

   CRIMINAL APPELLATE JURISDICTION : Criminal                 A
Appeal No. 1352 of 2009

    From the Judgment and Order dated 06.02.2009 of the
High Court of Bombay, Bench at Aurangabad in Criminal
Appeal No. 135 of 1997                                        B

    Sudhanshu S. Choudhari for the Appellant.

   Amol Chitale, Aniruddha P. Mayee, Charudatta
Mahindrakar, A. Selvin Raja for the Respondent.

    The Judgment of the Court was delivered by
                                                              c
     PRAFULLA C. PANT, J. 1. This appeal is directed
againstjudgmentand 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 D ·
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 13(2) of the
Prevention of Corruption Act, 1988 and sentenced him to E
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 heard learned counsel forthe parties and perused   F
the record.

      3. According to prosecution, the appellant was working
in the Finance Section of Zilla Paris had, Osmanabad. He was
handling the cases of General Provident Fund (GPF) and G
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 H
174       SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A 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
B sister's pension and GPF papers. The appellant, who was
  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
C 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
D 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
E 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
F him to contact after five-six days with rest of the 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
G 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
H further Rs.1,000/- would be required separately for pension
   work which would take about two-three months time. On this,
        NAYANKUMAR SHIVAPPA WAGHMARE                         175
 v. STATE OF MAHARASHTRA[PRAFULLAC. PANT, J.]

complainant PW-9 Anant Deshmukh went to Anti Corruption A
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 B
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 complainant to come with money in
the afternoon. After applying anthracene powder in the three C
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 D
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
Bhutekarwentto nearby tea stall. PW-9Anant Deshmukh, PW- E
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 F
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 ultra violet lamp and found G
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. 580 075977, 9CA 767761
and OPN 648332, accepted by the appellant were seized by
trap/raiding police party and a panchnama was prepared. A H
complaint (Ex. 41) was made by PW-12 P. I. Gadade and First
176         SUPREME COURT REPORTS                     [2015] 2 S.C.R.



A     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
 B    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
c     respect of offences punishable under Sections 7 and 13(1 )(d)
      read with Section 13(2) of Prevention of Corruption Act, 1988,
      on 15.3.1996, to which he pleaded not guilty, and claimed to
      be tried.

         5. On this, prosecution got examined PW-1 Uttam
 D 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
 E Deshmukh (complainant), PW-10 Mirabai (pensioner whose
   GPF papers were processed), PW-11 Ramdas (police Head
   Constable) and PW-12, P.I. Nandkumar Gadade (head of the
   raiding party). Oral testimony of the witnesses and
 F 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
 G acceptance of bribe, the accused stated that the same was
   not true. No evidence in defence was adduced.

       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
 H punishable under Sections 7 and 13(1 )(d) read with Section
        NAYANKUMAR SHIVAPPA WAGHMARE          177
 v. STATE OF MAHARASHTRA[PRAFULLAC. PANT, J.]

13(2) of the Prevention of Corruption Act, 1988 vide judgment A
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 B
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 c
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 was directed to undergo
rigorous imprisonment for a further period of six months. Hence D
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       E
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,       F
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      G
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 of GPF. He also stated that he gave
Rs.200/-to the accused, and for rest of the sum it was agreed        H
178        SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A 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
B 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
C 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.
 o      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
   statements of PW-1 Uttam Bhutekar and PW-3 Sahebrao
   Wanve. The prosecution story is further corroborated from the
 E 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
 F (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
 G 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
 H appellant, in the present case, is misconceived for the reason
        NAYANKUMAR SHIVAPPA WAGHMARE                           179
 v. STATE OF MAHARASHTRA[PRAFULLAC. PANT, J.)

that if the same is accepted, there cannot be any case where A
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 B
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. C
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.
                                                                   D
     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-9Anant 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    E
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.

     14. In our opinion, considering the fact that the statement F
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. G
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-9Anant Deshmukh made
a written complaint to the Anti Corruption Bureau on the date
when his sister's papers were being cleared.                     H
180         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A          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 that where,
  B 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
· C remuneration) or any valuable thing from any person, it shall
    ·be presumed, unles·s 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
  D 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-9Anant Deshmukh, it is clear
     that the accused has admitted that three currency notes were
  E 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.
       16. In Himacha/ Pradesh Administration v. Om
 F Prakash 1, explaining the expression "reasonable doubt", this
   CourthasobseNedasunder:-
          "lt 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
 G
          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
 H    , (1972) 1 sec 249
        NAYANKUMAR SHIVAPPA WAGHMARE                                181
 v. STATE OF MAHARASHTRA [PRAFULLA C. PANT, J.]

    before a court is generally due to the nature and quality        A
    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            B
    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              C
    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               D
    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                 E
    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
    could not have committed the offence. If that were so
    the law would fail to protect society as in no case can           F
    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."
                                                                     G
     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         H
182          SUPREME COURT REPORTS                   [2015] 2 S.C.R.



A Hemchandra Sashithal and another v. State of
      Maharashtra 2 , this Court has discussed gravity of the
      corruption cases in following words: -

           "26. It can be stated without any fear of contradiction
8         that corruption is not to be judged by degree, for
          corruption mothers disorder, destroys societal vitill to
          progress, accelerates undeserved ambitions, kills the
          conscience, jettisons the glory of the institutions,
          paralyses the economic health of a country, corrodes
c         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."
D       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
 E 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
 F    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.

      Nidhi Jain                                       Appeal dismissed




      2 (2013) 4   sec 642