Gajanan S/O Lobhaji Dahale vs The State Of Mah.Thr.Anti ...
2017 Latest Caselaw 5808 Bom

                                         1                                        apeal135.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 135 OF 2002


 Gajanan s/o Lobhaji Dahale,
 Aged about 49 years, 
 Occupation - Service, 
 Resident of Pusad, Taluka - Pusad,
 District - Yavatmal.                                             ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Anti Corruption Bureau, 
 Yavatmal, District Yavatmal.                                     ....       RESPONDENT

 ______________________________________________________________

              Shri A.V. Bhide, Advocate for the appellant,
            Shri A.V. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 10 AUGUST, 2017.

th

ORAL JUDGMENT :

This appeal is directed against the judgment and order

dated 25-02-2002 in Special Case 9/1998 delivered by the learned

Special Judge, Pusad, 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

2 apeal135.02

"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 two years in addition to payment of fine of

Rs.1,000/- for each of the offences, the sentence is, however, to run

concurrently.

2. The prosecution case, as is culled out from the complaint

lodged by Harish Jadhav dated 07-06-1993 is that the complainant

was working as tracer in the office of Public Works Department,

Division-2, Amravati till 20-06-1992. He was transferred to the office

of the Public Works Department, Sub-Division Darwha by order dated

05-06-1992 and was relieved on 20-06-1992. The complainant felt ill

and could not join duties immediately. He recovered from illness and

joined duties at the office of Public Works Department, Sub-Division

Darwha on 03-09-1992. However, one Shri C.V. Tarolkar in whose

place the complainant was posted had obtained a stay to the transfer

order with the result that both the complainant and C.V. Tarolkar

were working at the said office. Since two posts were not sanctioned,

the complainant was transfered to the office of Public Works Circle,

Yavatmal, pursuant to which transfer order, the complainant joined

duties in the office of Public Works Circle at Yavatmal on 16-11-1992.

3 apeal135.02

3. It is the case of the prosecution that on 19-09-1992 the

complainant submitted an application to the Executive Engineer,

Public Works Department, Pusad requesting that his salary for the

period of posting at Darwha be released. According to the

complainant, he submitted another application on 16-10-1992 making

a similar request. The complainant claims to have met the accused

sometime in April 1993 at the office of the Public Works Circle at

Yavatmal in the presence of Shri C.V. Tarolkar. a senior clerk in the

said offence. The complaint claims that the accused was requested by

the complainant to get the complainant's sick leave sanctioned and to

release the salary. The accused avoided the issue. The oral report

further states that vide letter dated 26-2-1993 the Superintending

Engineer, Public Works Circle, Yavatmal had informed the Executive

Engineer, Public Works Department, Pusad that the sick leave of the

complainant from 22-6-1992 to 02-9-1992 be sanctioned and that the

salary for the period from 02-9-1992 till 15-11-1992 be released. A

copy of the letter issued by the Superintending Engineer to the

Executive Engineer was marked to the complainant. The complainant

accordingly went to Pusad on 29-5-1993 and met the accused who was

working as a senior clerk. The complainant requested the accused that

the sick leave be sanctioned and the salary be released. The accused

4 apeal135.02

asked the complainant to pay an amount of Rs.200/- assuring that he

would soon put up the note-sheet for sanction of the sick leave and the

payment of the salary. The complainant was asked by the accused to

come to the office of the Executive Engineer, Public Works

Department, Pusad with an amount of Rs.200/- on 08-6-1993. The

complainant was unwilling to pay the illegal gratification and lodged

the oral complaint Exhibit 13.

4. The case of the prosecution which is further unfolded

during the trial is that pursuant to the oral report Exhibit 13, the Anti

Corruption Bureau made elaborate preparations to lay the trap. Panch

witnesses were summoned who were issued the necessary instructions

and given the usual demonstrations. The shadow panch who is

examined as P.W.2 accompanied the complainant to the office of

Public Works Department, Pusad. The complainant who is examined

as P.W.1 and shadow panch who is examined as P.W.2 met the

accused at about 1.15 p.m. and made enquiries about the sanction of

the leave and payment of salary in response to which the accused

showed the complainant the note-sheet and informed that the

signature of the Executive Engineer is to be obtained. The accused

alongwith the complainant and the shadow panch came out of the

5 apeal135.02

office and had tea at a tea stall. No conversation ensued at the tea

stall and the complainant and the shadow panch proceeded towards

the office alongwith the accused. Near the gate of the office the

complainant told the accused that as per his direction, he has come

prepared. The accused told the complainant to give the amount and

accordingly the complainant gave the amount to the accused. The

complainant gave the predetermined signal, pursuant to which the trap

party arrived at the spot and apprehended the accused. The fingers of

the left hand of the accused were dipped in the sodium carbonate

solution and the phenolphthalein test was positive. The completion of

the investigation led to charge-sheet being presented in the Court of

the learned Special Judge. The accused pleaded not guilty and

claimed to be tried.

5. The learned trial Court framed charge vide Exhibit 5, on

26-4-2001. The prosecution examined five witnesses including the

complainant and the shadow panch. The defence of the accused is of

total denial as is evident from the statement recorded under Section

313 of the Criminal Procedure Code.

6. The learned Special Judge was pleased to record a finding

6 apeal135.02

of guilt inter alia holding that in view of the acceptance of the illegal

gratification the statutory presumption under Section 20 of the Act

comes into play and the accused has failed to rebut the same.

7. Shri A.V. Bhide, learned Counsel for the accused submits

that the judgment impugned is vitiated by serious and glaring errors of

facts and law. He would submit that the learned Special Judge has

committed a serious error in holding that the statutory presumption

under Section 20 of the Act can be drawn on the proof of acceptance of

the illegal gratification. The learned Counsel would further submit that

it is a settled position of law that proof beyond reasonable doubt that

the accused had demanded and voluntarily received the illegal

gratification is a condition precedent for constituting offence

punishable under Sections 7 and 13(1) (d) read with Section 13(2) of

the Act. The learned Counsel would urge that the evidence on demand

is not only sketchy, is wholly unreliable. The offence under the Act is

no different from any other offence and the golden rule that the

accused is presumed to be innocent till the guilt is established beyond

reasonable doubt applies with equal rigor to offences under the Act.

The learned Counsel would urge that there is no reliable evidence to

suggest that the accused demanded illegal gratification and that even if

7 apeal135.02

it is assumed arguendo that the tainted currency notes were recovered

from the accused, the sine qua non for the constitution of the offence

under Sections 7, 13(1)(d) and 13(2) of the Act is not proved.

8. Per Contra, Shri A.V. Palshikar, learned Additional Public

Prosecutor would urge that the prosecution has proved that the

accused demanded illegal gratification and voluntarily accepted the

same. The learned Special Judge cannot be faulted for invoking the

statutory presumption and recording a finding that the accused failed

to rebut the same. The learned Additional Public Prosecutor would

urge that the evidence of the complainant/P.W.1 is corroborated by

the evidence of the shadow panch/P.W.2 and by the recovery of the

tainted currency notes from the accused.

9. I have given my anxious consideration to the evidence on

record and the judgment impugned. I am not persuaded to hold that

the prosecution has brought home the charge under Sections 7, 13(1)

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

my opinion, has miserably failed to prove that the accused demanded

illegal gratification. The evidence adduced to prove acceptance is

wholly unreliable and inadequate to bring home the charge.

8 apeal135.02

10. It is too well settled that the demand for bribe money is

sine qua non to constitute an offence under Sections 7, 13(1)(d) and

13(2) of the Act and that mere recovery of the currency ipso facto

would not prove the charge against the accused in the absence of

irrefutable evidence to prove the demand. It would be apposite to

make a reference to a relatively recent judgment of the Hon'ble Apex

Court in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108. The

relevant 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 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)

9 apeal135.02

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.

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,

10 apeal135.02

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)

11. Equally eloquent and eliminating are the observations of

the Hon'ble Apex Court in Mukhtiar Singh (Since Deceased) through

his L.R. vs. State of Punjab, 2017(7) Scale 702 in paragraphs 14, 15

and 25, 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

11 apeal135.02

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 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

12 apeal135.02

person in whose presence Rs.3,000/- at the first instance is 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."

12. I may now proceed to appreciate the evidence on record

on the touchstone of the exposition of law in the judgments noted

supra.

13. P.W.1 is the complainant Harish Jadhav. He states that he

applied for leave salary from 26-2-1992 to 03-9-1992. P.W.1 states

that the accused who then was working as a Clerk at the Public Works

Department, Pusad had come to Yavatmal. P.W.1 claims to have met

the accused at Yavatmal. P.W.1 further claims that the accused told

13 apeal135.02

him to come to Pusad and that the accused will draw the leave salary

of P.W.1. The complainant/P.W.1 states that he accordingly went to

Pusad and met the accused and the accused demanded Rs.200/-

towards expenses. P.W.1 asked the accused as to when P.W.1 should

come and the response was that P.W.1 should come on 08-6-1993.

P.W.1 states that he lodged the oral report with the Anti Corruption

Bureau on 07-6-1993 (Exhibit 13). This is the only reference in the

examination-in-chief to the alleged initial demand. P.W.1 further

deposes that on 08-6-1993 he and the shadow panch P.W.2 met the

accused at Public Works Department, Yavatmal. P.W.1 states that he

asked the accused about the leave salary. The accused showed P.W.1

the note-sheet of leave salary and told him that the signature of the

Executive Engineer is to be obtained. P.W.1 further deposes that he

and the accused came out to have tea. The tea stall was crowded and

no talks were held. P.W.1 and the accused approached the gate of the

office and P.W.1 told the accused that as per the directions of the

accused he had come prepared. P.W.1 states that the accused told him

to give amount and accordingly he gave the amount to the accused.

P.W.1 states that he gave the predetermined signal and the trap party

arrived at the spot and recovered the currency notes which the accused

had thrown alongwith the file.

14 apeal135.02

It is brought out on the cross-examination of P.W.1 that

there was already a direction issued by the Superintending Engineer,

Yavatmal to the Executive Engineer, Pusad to draw the salary after

sanctioning the leave. The accused admits that one clerk in the office

of the Executive Engineer, Public Works Department, Pusad

maintained the leave account and other clerk dealt with pay account.

The payment or drawing of salary was to be certified by the Divisional

Accountant and then the Executive Engineer, Public Works

Department, Pusad would sanction the leave and the payment of

salary. The version of the complainant/P.W.1 that he met the accused

at Yavatmal and the accused told that he will draw the leave salary of

the complainant does not inspire confidence. The accused was one of

the two clerks. The note-sheet was to be certified by the Divisional

Accountant and then placed before the Executive Engineer for approval

and sanction. The oral complaint is lodged on 07-6-1993. The

Superintending Engineer had already directed the Executive Engineer

that the sick leave of P.W.1 should be sanctioned and that the salary

should be released. According to the oral complaint/first information

report, a copy of the said letter was forwarded to the complainant/

P.W.1. In this backdrop, the version of P.W.1 that when he met the

accused at Yavatmal, the accused told him that he would release the

15 apeal135.02

salary in consideration of the payment of Rs.200/- towards expenses, is

wholly unbelievable. The evidence on initial demand is sketchy, sans

particulars and unreliable. P.W.1 does not disclose as to when he met

the accused at Yavatmal. In the examination-in-chief, all that is said by

P.W.1 is that the accused told P.W.1 to come to Pusad and he will

draw the salary. The examination-in-chief of P.W.1 is totally silent on

the date and the circumstances in which the alleged conversation took

place. The version that P.W.1 approached the accused and was told to

come to Pusad and was further told that the accused shall release the

salary in consideration of payment of expenses of Rs.200/- is

inherently incredible. The prosecution has miserably failed to prove

the initial demand. Testimony of P.W.1 on the alleged demand on

08-6-1993 is equally unreliable. P.W.1 claims that when he met the

accused and asked about the leave salary, he was shown the note-sheet

and told that the signature of Executive Engineer is to be obtained.

P.W.1 further states that he and the accused had a cup of tea at the tea

stall and there was no talk of any payment at the tea stall. P.W.1

states that when he and the accused came to the gate of the office, it

was P.W.1 who told the accused that as per the direction of the

accused, P.W.1 had come ready. P.W.1 states that thereafter he was

told by the accused to give the amount. In the cross-examination, it is

16 apeal135.02

brought out that when the accused and P.W.1 were walking towards

the office the clerks and the shadow panch were behind them. The

accused was on right side of P.W.1 and was holding a diary and some

papers in his left hand. P.W.1 admits in the cross-examination that

while walking towards the office, he told the accused that he had come

ready as directed and kept the amount in the left hand of the accused

with the papers and that when he gave the signal, the accused said

'what is this' and threw the amount from the papers by hand.

14. The testimony of P.W.1 does not prove that the accused

demanded illegal gratification. On the contrary, P.W.1 states that he

told the accused that he has come prepared and kept the amount in the

left hand of the accused. There is absolutely no whisper in the entire

testimony of P.W.1 that the accused demanded illegal gratification on

08-6-1993.

15. The shadow panch is P.W.2. P.W.2 has supported the

prosecution to the extent that he states that when P.W.1, accused and

P.W.2 were returning to the office after having tea, P.W.1 told the

accused that he had come ready as per the directions of the accused

and the accused told him to give the amount. P.W.2 states that the

17 apeal135.02

accused was carrying papers and he accepted the amount with the

papers.

16. I do not find the testimony of P.W.2 trustworthy. P.W.2

was following P.W.1/complainant and the accused. P.W.1 has not

stated anything about any demand made by the accused muchless that

the accused told him to give the amount. Even according to the

prosecution witnesses, the accused was walking on the right side of the

complainant/P.W.1 and was carrying diary and papers in his left hand.

I do not find it natural or believable that P.W.1 gave the amount to the

accused and the accused received the amount voluntarily with his left

hand whilst holding the diary and the papers.

17. It is an established position of law that the complainant

and the panch witnesses are partisan witnesses since they are

interested in the success of the trap. 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. I am not in a position to hold that the

18 apeal135.02

prosecution has proved the offences beyond reasonable doubt. The

evidence is to sketchy, unreliable and grossly inadequate, both on the

demand and acceptance of illegal gratification. Suspicion, however,

strong cannot be permitted to substitute proof.

18. The learned Special Judge was not justified in invoking

the statutory presumption under Section 20 of the Act. The

presumption is invoked on the premise that the recovery and therefore,

the acceptance of illegal gratification is proved. I am afraid, such a

view militates against settled legal position. In the absence of proof of

demand of illegal gratification, it is wholly impossible in law to invoke

the statutory presumption under Section 20 of the Act.

19. The judgment impugned passed by the learned Special

Judge, Pusad on 25-2-2002 in Special Case No.9/1998 is unsustainable

in law and is set aside. The appellant is acquitted of the offences

punishable under Sections 7, 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.

                                               19                                      apeal135.02




                             The appeal is disposed of accordingly. 




                                                                      JUDGE
adgokar