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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

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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

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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

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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

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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

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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.   

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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

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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

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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.   

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11. In  support  of  these  submissions  reliance  was  placed  on  the

decisions of this Court in  P. Parasurami Reddy v.  State of Andhra

Pradesh1,    Banarsi Dass v. State of Haryana2   and  State of Punjab

v. Madan Mohan Lal Verma3.

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

1  (2011) 12 SCC 294, 2  (2010) 4 SCC 450 3  (2013) 14 SCC 153

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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

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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.

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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

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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

4 1993 Supp. (1) SCC 323

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