Sudhakar S/O Shamrao Gaikwad vs The State Of Maharashtra
2017 Latest Caselaw 5727 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 321 OF 2000


 Sudhakar s/o Shamrao Gaikwad,
 Aged about 45 years,
 Occupation - Patwari, 
 H.No.15, Kohali, r/o Kalmeshwar,
 District - Nagpur.                                               ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.I. Pande, 
 Anti Corruption Bureau, Nagpur.                                  ....       RESPONDENT

 ______________________________________________________________

           Shri Mohit Khajanchi, Advocate for the appellant, 
          Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 8 AUGUST, 2017.

th

ORAL JUDGMENT :

This appeal is directed against the judgment and order

dated 21-10-2000 in Special Case 2/1994, delivered by the learned

Special Judge, Nagpur, convicting the appellant (hereinafter referred

to as the "accused") for the offence punishable under Section 7 of the

Prevention of Corruption Act, 1988 (hereinafter referred to as the

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"Act") and the offence punishable under Section 13(1)(d) read with

Section 13(2) of the said Act. The accused is sentenced to suffer

rigorous imprisonment for seven months in addition to payment of fine

of Rs.250/- for the offence punishable under Section 7 of the Act and

rigorous imprisonment for fifteen months in addition to payment of

fine of Rs.250/- for the offences punishable under Sections 13(1)(d)

and 13(2) of the Act, the sentence is, however, to run concurrently.

2. The prosecution case as is culled out from the oral report

of the complainant dated 30-04-1993 (Exhibit 18) is thus :

The complainant Daulat Bansod purchased an agricultural

field admeasuring 4 acres and the sale-deed was registered at the

office of the Sub-Registrar at Kalmeshwar. The complainant obtained

the copy of the sale-deed seven to eight days after the registration and

after one to one and half months of receiving the copy, took a

photocopy of the sale-deed and handed over to the accused who then

was Patwari at village Kohali with a request for mutating his name in

the revenue record. The accused who was the Patwari told the

complainant that he was busy with some other work and he would do

the needful later on. Fortnight thereafter, the complainant met the

accused at Kohali and again requested that the mutation be done and

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copy of 7/12 extract be provided. The complainant told the accused

that he was desirous of obtaining a loan for constructing a well for

which copy of the 7/12 extract was necessary. The complainant was

told by the accused that an amount of Rs.500/- was required for the

mutation and copy of 7/12 extract. In response, the complainant told

the accused that he could not pay Rs.500/-. The accused told the

complainant that the money is needed for the senior officer and that

work cannot be done free of cost. The accused told the complainant

that he would accept Rs.100/- less. The complainant did not have any

alternative and agreed to pay Rs.400/- to the accused. The accused

asked the complainant to make payment of Rs.100/- on the same day.

The accused told the complainant that he did not have the money

whereupon the accused told him that the complainant should bring the

said money within four days and only thereafter the process be

initiated. According to the oral report, the complainant went to the

office of accused at Kohali after two to four days and met him at the

bazaar chowk (market square). The accused asked the complainant

whether he had brought the said money and the complainant gave the

accused Rs.100/- at the market square. The complainant further states

that after ten to twelve days, the accused came to his residence and

told him that the mutation was done and the balance amount of

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Rs.300/- shall have to be paid before the complainant is given the 7/12

extract, form 8-A and the map. Eight to ten days prior to the

complaint the complainant went to the office of the accused and asked

him about the 7/12 extract, form 8-A and the map. The accused asked

the complainant whether he had brought the money. The complainant

told the accused that he had only Rs.50/-. The accused asked for that

amount and further asked the complainant to bring the remaining

amount of Rs.250/- later. The complainant states in the report that on

29-4-1993 when he met the accused at the office and enquired about

the 7/12 extract, form 8-A and the map, he was asked by the accused

as to whether the remaining amount of Rs.250/- was brought. The

complainant told the accused that he did not bring the amount. The

accused then asked the complainant to bring the said amount on the

next on 30-4-1993 and to take the 7/12 extract, form 8-A and the map.

The complainant was not inclined to pay the illegal gratification and

lodged the report with Anti Corruption Bureau, Nagpur.

3. The case of the prosecution which is further unfolded in

the course of trial, is that acting on the report Exhibit 18 the Anti

Corruption Bureau, Nagpur made elaborate preparations to lay the

trap, panchas were summoned and properly instructed, the necessary

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demonstrations were given and the trap party proceeded towards

village Kohali. The trap party reached Kohali at 6-00 p.m. The

complainant and the shadow panch reached the office of the accused

and the complainant, demanded the 7/12 extract, form 8-A and the

map of the agricultural field. The accused told the complainant that

form 8-A and map are not available, however, 7/12 extract is

available. The accused took out the 7/12 extract from the drawer,

affixed the seal and delivered it to the complainant. The complainant

took the 7/12 extract with left hand and came out alongwith the

shadow panch. It was then that the accused said that the account is

not settled. The complainant told the accused that he has brought the

amount as per the say of the accused. The complainant was giving the

accused money and the accused asked him to put it on the table. The

complainant put five currency notes of Rs.50 denominations on the

table, came out of the office and gave signal and trap party rushed to

the spot and further investigations ensued. The fingers of the accused

were dipped in the sodium carbonate solution. The colour of the

solution did not change. The anti corruption bureau completed the

investigation and presented the charge-sheet after obtaining the

sanction under Section 19 of the Act. The accused pleaded not guilty

and demanded a trial. The learned Special Judge, Anti Corruption

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Bureau, Nagpur has returned a finding of guilt which judgment and

order is impugned in this appeal.

4. Shri Mohit Khajanchi, learned Counsel for the appellant

invites my attention to a very recent judgment of the Hon'ble Supreme

Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State

of Punjab, 2017(7) Scale 702 paragraphs 14, 15 and 25 of which

read thus :

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and

(ii) of the Act. It was recounted as well that in the absence of

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any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre- requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.

25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is

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alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."

Relying on the exposition of law in Mukhtiar Singh (Since Deceased)

through his L.R. vs. State of Punjab the learned Counsel would urge that

the prosecution has failed to prove that the accused demanded illegal

gratification. He would further urge that the alleged recovery of the

currency notes from the table does not take the case of the prosecution

any further. Proof of demand of illegal gratification is sine qua non for

the constitution of offences under Section 7 read with Sections 13(1)

(d) and 13(2) of the Act and even assuming arguendo that the currency

notes were recovered from the office table of the accused, the charge

cannot be brought home in the absence of proof of demand. The

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learned Counsel hastened to add that the said submission is without

prejudice to his contention that the alleged recovery of the currency

notes is no recovery in the eyes of law, in the teeth of the evidence on

record that the currency notes were found on the office table on which

there was a heap of files and record.

5. Shri Mohit Khajanchi, learned Counsel would further

relies on the judgment of the Hon'ble Supreme Court in Krishan

Chander vs. State of Delhi, (2016) 3 SCC 108. The relevant

observations in paragraphs 35, 36 and 37 read thus :

"35. It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) o the PC Act. The same legal principle has been held by this Court in B. Jayaraj, A. Subair and P. Satyanarayan Murthy upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.

36. The relevant para 7 from B. Jayaraj case reads thus : (SCC p.58).

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been

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succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.and C.M. Girish Babu v. CBI."

(emphasis supplied)

37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p.159, paras 21-23)

"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)

(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

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23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)

(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied)

6. Smt. M.H. Deshmukh, learned Additional Public

Prosecutor would urge that the prosecution has successfully

proved the demand and acceptance of illegal gratification. The

learned Additional Public Prosecutor would urge that the

accused has failed to rebut the presumption under Section 20 of

the Act and the judgment and order impugned does not suffer

from any legal infirmity.

7. The prosecution has examined six witnesses

including the complainant (P.W.1), shadow panch (P.W.2) and

the sanctioning authority (P.W.4).

8. The defence of the accused is of total denial and

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false implication.

9. I have given my anxious consideration to the

evidence on the touchstone of the legal position enunciated by

the Hon'ble Supreme Court in the judgments noted supra.

10. I am not in a position to hold that the prosecution

has proved the offence under Section 7 read with Sections 13(1)

(d) and 13(2) of the Act beyond reasonable doubt. The

prosecution has not proved that the accused demanded illegal

gratification which is a condition precedent for conviction under

Section 7 read with Sections 13(1)(d) and 13(2) of the Act. The

version of the prosecution that the accused voluntarily accepted

an amount of Rs.250/- as illegal gratification is wholly

unreliable. Even if it is assumed that the said amount was

recovered from the office table of the accused, I am not inclined

to accept the version of the prosecution that the said amount

was voluntarily accepted as bribe, by the accused.

11. The evidence of P.W.1/complainant on initial

demand is sketchy, vague and lacking in material particulars.

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The version qua initial demand is absolutely uncorroborated.

The version of P.W.1 that an amount of Rs.50/- was paid to the

accused at the market square is unnatural and unbelievable.

The defence has made an attempt to discredit P.W.1 by bringing

on record that he is an accused in number of prohibition

prosecutions. Be that as it may, even otherwise the testimony of

the complainant has been held to be not on a better footing than

that of an accomplice. In Pannalal Damodar Rathi vs. State of

Maharashtra, 1988 SCC (Criminal) 121, the Hon'ble Apex

Court has propounded that after the introduction of Section 165-

A of the Indian Penal Code, a person who offers bribe is guilty of

abetment and the testimony of such person cannot be on a

better footing than that of an accomplice. In the absence of

corroboration, I have no hesitation in holding that the initial

demand has not been proved. Equally unreliable is the version

of P.W.1 as to the alleged demand of illegal gratification on 30-

04-1993. Even according to P.W.1, when he demanded 7/12

extract, the accused took out the 7/12 extract, affixed the seal

and delivered the same to P.W.1. Even according to P.W.1,

there was no demand of illegal gratification till the 7/12 extract

was taken out, sealed and delivered to P.W.1. According to

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P.W.1 when he and the shadow panch came out of the office-

cum-residence of the accused, the accused said that the account

is not settled. P.W.1 states in examination-in-chief that he told

the accused that the amount has been brought, P.W.1 was giving

the accused money and the accused said that the money be put

on the table. P.W.1 states that he put the currency notes on the

table, came out and gave the predetermined signal. P.W.1

admits in the cross-examination that prior to mutation he

received notice from the talathi to remain present in the office of

the Inspector. He admits that he confronted the accused and

asked the accused as to why although he has supplied photocopy

of the sale-deed to the accused, he is asked to be present at the

office of the revenue inspector. P.W.1 admits that due to the

receipt of the notice, perceived that the notice was a sign of

extracting money. He admits that he did not attend the office of

the revenue inspector in response to the notice. The defence has

succeeded in bringing on record material omissions which

partake the character of contradiction. He admits that there was

no talk between him and the accused till delivery of 7/12

extract. A suggestion is given to P.W.1 that the signature of

P.W.1 remained to be taken and this was told by the accused to

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P.W.1, which suggestion is denied. P.W.1 has further denied the

suggestion that he alone re-entered the office and kept the

currency notes behind the heap of files on the table. He denies

the suggestion that he came out of the office-cum-residence of

the accused without putting the signature on the papers.

12. The shadow panch is examined as P.W.2. He states

that the office of the accused is in a part of the residential house.

P.W.2 deposes that P.W.1 said that his work should be done.

P.W.2 states that the accused prepared the 7/12 extract and

delivered it to Bansod. P.W.2 further states that the accused

said that all the work is done. P.W.2 further states that as he

and the complainant were about to leave the office, the accused

said that the work has not been done. P.W.1 and P.W.2 turned

back and P.W.1 complainant said that as per the demand, he has

brought Rs.250/-. P.W.1 offered the amount to the accused and

the accused said that the amount be kept on table. P.W.1 kept

the amount on table and both P.W.1 and P.W.2 came towards

the door. After P.W.1 and P.W.2 came in the courtyard, P.W.1

gave signal by putting a dupatta around the head. I find

material inter se inconsistencies and contradictions in the

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evidence of P.W.1 and P.W.2. More importantly I am not

persuaded to hold that the evidence of P.W.1 and P.W.2 proves

beyond reasonable doubt that the accused demanded illegal

gratification. P.W.1 and P.W.2 are in unison in stating that

there was absolutely no talk between P.W.1 and the accused till

the delivery of 7/12 extract.

13. The version that when both P.W.1 and P.W.2 were

to exit from the office, the accused said that his work was not

done or his account was not settled, is wholly unreliable and

does not, at any rate, prove demand of illegal gratification

beyond reasonable doubt.

14. The judgment impugned passed by the learned

Special Judge, Nagpur on 21-10-2000 in Special Case

No.2/1994 is unsustainable in law and is set aside. The

appellant is acquitted of the offences punishable under Section 7

read with Sections 13(1)(d) and 13(2) of the Prevention of

Corruption Act, 1988. His bail bond shall stand discharged. Fine

paid, if any, by the appellant shall be refunded to him.

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                             The appeal is disposed of accordingly. 




                                                                       JUDGE
adgokar