Dayaram S/O Balaram Kuthe vs The State Of ...
2017 Latest Caselaw 5892 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.189 OF 2002

          Dayaram s/o Balram Kuthe,
          Aged about 48 years,
          Occupation Tax Collector,
          Nagpur Municipal Corporation,
          Nagpur.                                            ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra
          through Anti Corruption Bureau,
          Nagpur.                                             ....... RESPONDENT
    --------------------------------------------------------------------------------------
          Shri S.D. Chande, Advocate for Appellant.
          Mrs. M.H. Deshmukh, APP for Respondent/State.
    ---------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            14    AUGUST, 2017.


 ORAL JUDGMENT

1. The appellant seeks to assail judgment and order

dated 22.03.2002 delivered by the Judge, Designated Court under

the Prevention of Corruption Act, Nagpur in Special Case 13/1989

by and under which the appellant/accused (hereinafter referred to

as the accused) is convicted for offence punishable under section

5(1)(d) read with section 5(2) of the Prevention of Corruption

Act, 1947 and sentenced to suffer rigorous imprisonment for one

year and to pay a fine of Rs.500/-.

2. The case of the prosecution is that a resident of

Sanjay Nagar, Pandharabodi, Nagpur one Dharamraj Natthuji

Madankar constructed a house in Ward 73, the said house was not

assessed for property tax, the Talathi, surveyed the said area

which made the residents aware that the Corporation intends to

assess their construction for property tax. Some of the residents in

the locality received the demand notice of tax issued by the

Corporation. The complainant did not receive a demand notice

and visited the office of the Corporation on 17.03.1986 to submit

an application requesting the Corporation to assess his super

structure and issue a demand notice.

3. According to the prosecution case, after about four

months the accused who then working as a Tax Collector visited

Ward 73 for effecting recovery. Complainant contacted the

accused with a request to issue demand notice. The accused

informed the complainant that the tax for the year 1987-88 is

Rs.52.60 and in addition to the tax amount the complainant will

have to pay Rs.175/- to the accused for the work done by the

accused. The accused is alleged to have asked the complainant to

make arrangement of Rs.230/- inclusive of reward (mehtana).

The complainant informed the accused that it would take

sometime to arrange the said amount and the response of the

accused was that the receipt for the payment of tax will not be

issued unless the entire amount of Rs.230/- is paid.

The complainant visited the house of the accused at 8:00 or 8:30

a.m. on 06.02.1988. The accused asked the complainant whether

the complainant has made arrangement for money. The accused

assured the complainant that the money shall be arranged.

The accused again visited the house of the complainant on

09.02.1988 and demanded Rs.230/- which amount was not

available with the complainant. The accused again visited the

house of the complainant at 8:30 a.m. on 11.02.1988 and

repeated the demand for Rs.230/-. The accused told the

complainant to remit the amount as early as possible, failing

which, the complainant will be required to pay tax for six to seven

years with penalty. The complainant again assured the accused

that the amount shall be paid on 12.02.1988 between 2:00 p.m. to

5:00 p.m.

4. The prosecution contends that the complainant

Dharamraj was not ready to pay gratification of Rs.175/- and

approached the office of the Anti Corruption Bureau and lodged a

complaint against the accused on 12.02.1988. The complaint was

reduced into writing, read over to the complainant, who certified

that the contents are correctly recorded. ACB issued a letter to

C.E.O. Zilla Parishad, Nagpur to depute two employees to act as

panch witness. The Zilla Parishad deputed two panch witnesses

Mr. Wankar and Mr. Mahajan to act as panchas. The panch

witnesses came to the A.C.B. Office in the afternoon on

12.02.1988 along with Head Constable Fuke. The complainant

deposited Rs.230/- with the A.C.B. Office. The amount of

gratification i.e. Rs.175/- was deposited in four currency notes of

denomination of Rs.100/-, Rs.50/-, Rs.20/- and Rs.5/-.

The amount of tax i.e. Rs.55/- was also deposited in four currency

notes of different denomination i.e. Rs.50/-, two currency notes

each of Rs.2/- and one currency note of Rs.1/-.

5. The usual demonstration of the effect of addition of

phenolphthalein powder to the solution of sodium carbonate was

given, the necessary instructions was issued to the panchas,

phenolphthalein powder was applied to the currency notes totally

Rs.175/- to be paid as gratification. The complainant accompanied

by the shadow panch (P.W.1 Ashok Wankar) went to the office of

the accused which was on the Upper Floor of building situated in

Mahal area of Nagpur. The rest of the trap party waited for the

predetermined signal. The accused was not at his table and the

complainant and the shadow panch waited for half an hour for the

accused to return to the table. According to the prosecution, the

accused asked the complainant whether he has brought the

amount as demanded and the complainant answered in

affirmative saying that as per your demand amount is brought.

The complainant gave the tax amount of Rs.55/- and also

tendered the amount of gratification of Rs.175/- separately. The

accused received the tax amount of Rs.55/- and kept the same in

the drawer of its table and issued a receipt of payment of tax in

favour of the complainant. The accused received the amount of

Rs.175/- towards gratification separately, counted the amount and

kept that amount in the chest pocket of his shirt. The complainant

gave the predetermined signal to the trap party which descended

on the spot and caught the hands of the accused. The ACB Officer

Mr. Roy ascertained from the shadow panch P.W.2 whether there

was demand of gratification and whether the accused received the

gratification from the complainant and where is that amount kept.

P.W.2 answered in the affirmative and disclosed that the amount

of gratification is kept in the chest pocket of the shirt of the

accused. The accused was directed to dip fingers of right hand in

the solution which turned purple. The accused was then directed

to dip the fingers of his left hand in the solution which again

turned purple. The panch 2 Shaikh Jabbar was directed to

personal search the accused to ascertain whether the tainted

currency notes are in the chest pocket of the shirt, as disclosed by

P.W.2. The folded currency notes were found in the chest pocket,

the number of the currency notes tallied with the numbers

recorded in the ACB office. The sodium carbonate solution was

sprinkled on the currency notes. Purple colour dots appeared on

the currency notes. The notes were then sealed in the khaki

envelope. The tax amount which was kept in the drawer was

similarly treated. Purple colour dots appeared only on the

currency note of Rs.50/-. The currency notes were then kept in

separate envelope and which was sealed.

6. The shirt and left side chest pocket of the shirt which

the accused was wearing was treated, with the solution, purple

dots appeared and the shirt was seized and wrapped in paper, the

packet prepared, closed and sealed. It is alleged that certain

articles were found in one bag with the accused which included

tax receipt book of Ward 73, Part-VI in which receipt book 812

was the counter foil of the receipt issued in favour of the

complainant Dharamraj acknowledging the tax amount of

Rs.52.60 for the period 01.04.1987 to 31.03.1988.

7. The investigations were conducted, statements of

witnesses were recorded and the papers were forwarded to the

sanctioning authority. The sanctioning authority was the

Administrator, Nagpur Municipal Corporation who accorded

sanction to prosecute the accused pursuant to which sanction the

charge-sheet was submitted. The designated Court framed charge

at Exh.11. The accused pleaded not guilty and claimed to be tried.

The prosecution examined ten witnesses. The complainant is

examined P.W.1, the shadow panch is examined as P.W.2, P.W.3

Bhaurao Namdeorao Dukhare forwarded the complaint to P.I.

Kotwali, P.W.4 PSI Rajendra Parasram Upadhye registered the

crime at Police Station Kotwali. P.W.5 Arvind Ram Page is

Superintendent, Tax Department and P.W.6 and P.W.7 are Tax

Inspector N.M.C. and Tax Collector N.M.C. respectively. P.W.8 is

the Investigating Officer, Tapankumar Subhashchandra Roy,

P.W.9 Rajendrasingh Batuksingh is the sanctioning authority,

P.W.10 is Mohd. Shabir was then the Dy.S.P. of A.C.B. who

submitted the charge-sheet.

8. The accused has not taken any specific defence except

that of total denial in the statement recorded under section 313 of

the Criminal Procedure Code. However, the tenor and trend of the

cross-examination would suggest that the defence taken is that no

gratification was demanded or received and that the amount in

addition to the tax amount for the year 1987-88 recovered from

the accused was willingly paid by the complainant towards the

arrears of tax for the previous years. I have heard Shri Chande, the

learned counsel for the accused and Mrs. Deshmukh, the learned

Additional Public Prosecutor at length. I have scrutinized the

evidence on record and have given anxious consideration to the

reasoning of the learned Judge of the designated Court.

9. Shri Chande, would urge that the conviction is based

more on suspension rather than proof. He would submit that it

was incumbent upon the prosecution to prove beyond any

reasonable doubt that the accused demanded gratification and

received the amount of Rs.175/-, which the prosecution is treating

as gratification, pursuant to such a demand. He would submit that

even if arguendo, it is assumed that, that the prosecution is

successful in proving that the said amount of Rs.175/- was

received by the accused and was recovered from the chest pocket

of the shirt of the accused, in the absence of proof that the accused

demanded gratification and received the amount as gratification,

offence punishable under section 5(1)(d) of the Prevention of

Corruption Act, 1947 is not made out. He invites my attention to

the settled position of law that the statutory presumption under

section 4 of the Act would come into play only if the offence

alleged is under section 5 (1)(a) and (b) of the Act. Shri Chande

would urge that when the offence alleged is under section 5(1)(d)

the presumption under section 4 cannot be invoked.

10. Shri Chande, the learned counsel would further urge

that proof of demand is sine quo none and essential ingredient of

offence under section 5(1)(d) of the Act. Demand for gratification

must be proved by the prosecution by reliable and cogent evidence

and unless the demand is proved, the mere fact that the currency

notes allegedly paid as bribe, are recovered from the custody of

the accused, can take the case of the prosecution no further. The

learned counsel submits that the learned Judge of the Designated

Court has committed a grave error in holding that in view of the

recovery of currency notes, which according to the learned Judge,

represented the gratification amount, the burden shifted on the

accused to explain the circumstances in which he received the

currency notes. Shri Chande, would urge that the view taken by

the learned Judge of the Designated Court militates against the

statutory provisions and the exposition of law by the Hon'ble

Supreme Court in plethora of judgments. The learned counsel

invites my attention to the 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 and in particular to

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 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 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."

11. Shri. Chande, learned counsel further relies on the

judgment of the Hon'ble Supreme Court Banarasi Dass Vs. State

of Haryana, (2010) 4 SCC 450 to contend that to bring home a

charge either under section 161 of the Indian Penal Code or

section 5(1)(d) read with section 5(2) of the Prevention of

Corruption Act, 1947 it is necessary for the prosecution to prove

that the accused demanded illegal gratification and voluntarily

accepted the said. It would be apposite to refer to the relevant

observations of the Hon'ble Supreme Court which reads thus:-

"19. The above findings recorded by the High Court show that the Court relied upon the statements of PW 10 and PW11. It is further noticed that recovery of currency notes,

Exts. P-1 to P-4 from the shirt pocket of the accused examined in light of Exts. PC and PD, there was sufficient evidence to record the finding of guilt against the accused. The Court remained uninfluenced by the fact that the shadow witnesses had turned hostile, as it was the opinion of the Court that recovery witnesses fully satisfied the requisite ingredients. We must notice that the High Court has fallen in error insofar as it has drawn the inference of the demand and receipt of the illegal gratification from the fact that the money was recovered from the accused."

"20. It is a settled canon of criminal jurisprudence that the conviction of an accused can not be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence. Applying these tests to the facts of the present case, PW 10 and PW 11 were neither the eyewitnesses to the demand nor to the acceptance of money by the accused from Smt. Sat 2Pal Kaur (PW 2)."

"25. Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babu where in the facts of the case of Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court

held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under;(SCC pp.784 & 785-86)

"18. In Suraj Mal v. State (Delhi Admn.) this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

"20. A three-judge Bench in M. Narsinga Rao v. State of A.P., while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:(SCC p. 700, para 24)

'...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length.(Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra.) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case, SCC p. 577, para 12)

"12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any

valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word' gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." ' In fact, the the above principle is no way a derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan where similar view was taken.

12. Mr. Chande, would urge that since the complainant did not

support the prosecution case, the learned Judge of the Designated

Court fell in serious error in recording of finding that the demand

of illegal gratification stood proved by relying on the evidence of

the shadow panch witness and the alleged recovery of the tainted

currency notes. He would submit that the statutory presumption

under section 4 of the Prevention of Corruption Act, 1947 could

not have been invoked since the accused was charged only under

section 5(1)(d) read with section 5(2) of the Prevention of

Corruption Act, 1947. The learned counsel relies on a judgment of

the Hon'ble Apex Court C.K. Damodaran Nair Vs. Govt. of India

(1997)9 SCC 477 in support of the submission that presumption

under section 4(1) of the Act cannot be invoked if the charge is

only under section 5(1)(d) read with section 5(2) of the Act. The

learned counsel would contend that there is a manifest

misdirection in the judgment impugned in as much as the learned

Judge of the Designated Court was persuaded to hold that the

recovery of the currency notes allegedly representing the illegal

gratification would shift the burden on the accused to explain the

circumstances in which he received an amount of Rs. 175/- in

addition to the tax due and payable for the year 1987-88. The

learned counsel would urge that the approach of the learned judge

of the Designated Court is clearly fallacious. He would urge that

not only was it impermissible to invoke the statutory presumption,

even otherwise, it would only be on proof of demand that the

Court could have invoked the statutory presumption. My attention

is invited to the judgment of the Hon'ble Supreme Court Panalal

Damodar Rathi Vs. State of Maharashtra, 1980 SCC (Cri.) 121

to further contend that after the introduction of section 165-A of

the Indian Penal Code on the statute book, the evidence of the

complainant is on the same footing as that of an accomplice. Shri.

Chande would also urge that it is well settled position that the

evidence of both the complainant and the panch witness must be

tested on the anvil of caution, credibility and reliability. This,

according to the learned counsel is the mandate of the Hon'ble

Supreme Court dictum which is on the premise that a complainant

and panch witness are both partisan witnesses who are interested

in the success of the trap. I have no difficulty in accepting both

the submissions of the learned counsel Shri. Chande.

13. The sine qua non for proving the offence under section 5(1)

(d) read with section 5(2) of the Act is the proof that the accused

demanded illegal gratification and that he received the illegal

gratification voluntarily. The burden to prove the indispensable

essentiality is absolute and the approach of the learned Judge of

the Designated Court and the view taken by the learned Judge of

the Designated Court is clearly fallacious. The presumption of

innocence which is available to a person accused of any other

offence is equally available to a person accused of offences

punishable under the provisions of Prevention of Corruption Act,

1947. The presumption of innocence is neither dislodged nor

eviscerated by the recovery of the tainted notes. The statutory

presumption under section 4(1) would come into play, if at all, if

the demand of illegal gratification is proved by the prosecution. I

must hasten to reiterate, since the accused stood charged only

under section 5(1)(d) read with section 5(2) of the Act, statutory

presumption under section 4(1) of the Act was not available to the

prosecution, as it held by the Hon'ble Supreme Court in C.K.

Damodar Nair Vs. Govt. of India, (1997)9 SCC 477.

14. The learned counsel further relies on the judgment of

the Hon'ble Supreme 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)

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, 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)

15. Shri. Chande, learned counsel for the accused has also

relied on the judgment of the Hon'ble Supreme Court in P.

Satyanarayana Murthy Vs. District Inspector of Police State of

Andhra Pradesh and another (2015)10 SCC 152 and in

particular to the following observations to buttress his submission

that the prosecution has to prove the charge beyond reasonable

doubt like any other criminal offence and that the accused should

be considered to be innocent till it is established otherwise, by

proper proof of demand and acceptance of illegal gratification.

The relevant observations in the said judgment read thus:-

"20. This Court in A, Subair v. State of Kerala, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that (at SCC p.593, para 28) the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction."

"21. In State of Kerala v. 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 Section 7 as well as Sections 13(1)(d)(i) and (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 Sections 13(1)(d)(i) and (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 emphasised, 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) and

(ii) of the Act 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 Section 7 or 13 of the Act would not entail his conviction thereunder."

"26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of 'must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

16. Shri. Palshikar, learned APP makes a valiant attempt to

support the judgment impugned. He would contend that despite

the fact that the complainant has not supported the prosecution,

the demand of illegal gratification stands proved on the basis of

the evidence of the shadow panch witness and the recovery of the

tainted notes from the accused. He would submit that the learned

Judge of the Designated Court was justified in recording a finding

that there were no arrears of tax due and payable and the accused

was as such not in a position to explain the receipt of an amount

of Rs. 175/- in addition to the property tax due and payable for

the year 1987-88.

17. I am afraid, I am not persuaded to accept the aforesaid

submission. The complainant has not supported the prosecution.

In the facts of the case, the finding that the demand stood proved

could not have been recorded only on the basis of the

uncorroborated testimony of the shadow panch witness, much less

on the basis of the recovery of the currency notes. The evidence

of shadow panch is sketchy and does not inspire confidence.

According to shadow panch, complainant gave Rs. 55/- to the

accused towards tax payable against which the accused issued a

receipt. The shadow panch claims that the accused "brought the

amount of his work." The witness then deposes that the accused

kept Rs. 55/-, which was the tax payable, in the drawer and kept

Rs. 175/- in his pocket. The panch witness further deposes that

the accused took out Rs. 55/- paid towards tax and put the same

in his pocket. It is difficult to believe that the accused would put

Rs. 55/-, against which he had issued a receipt to the complainant,

in his pocket. The interaction between the complainant and the

accused took place in a hall in the presence of 20 to 22 other

employees. On appreciating the evidence as a whole, I consider it

absolutely unsafe to convict the accused on the basis of evidence

on record.

18. The learned Judge of the Designated Court has clearly fallen

in serious error in shifting the burden on the accused to explain

the recovery of the currency notes and then reaching a conclusion

that the demand of illegal gratification and voluntarily receipt

thereof stood proved on the basis of the evidence of the panch

witness and the perceived failure of the accused to explain the

receipt and recovery of the alleged illegal gratification. Such a

approach is fallacious and clearly militates against the settled legal

position.

I, therefore, set aside the judgment and order impugned

dated 22.03.2002 passed by the Judge, Designated Court under

Prevention of Corruption Act, Nagpur in Special Case 13/1989.

The appeal is allowed.

The accused is acquitted of offence under section 5(i)(d)

read with 5(2) of the Prevention of Corruption Act, 1947.

The bail bonds stand discharged.

JUDGE

NSN/Belkhede