Shridhar Ramkrushna Fale vs The State Of Mah.Thr.Anti ...
2017 Latest Caselaw 5944 Bom

                                        1                                        apeal152.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 152 OF 2002


 Shridhar Ramkrushna Fale,
 Aged about 65 years, Occupation - Nil,
 Resident of Murtizapur, District -
 Akola.                                                          ....       APPELLANT


                     VERSUS




 The State of Maharashtra, 
 through Anti Corruption Bureau, Akola.                          ....       RESPONDENT

 ______________________________________________________________

    Shri Anil S. Mardikar, Senior Advocate assisted by Ms. Kshirsagar,
                        Advocate for the appellant, 
              Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

                             DATE    : 16
                                            AUGUST, 2017
                                          th




 ORAL JUDGMENT : 

The appellant is aggrieved by the judgment and order

dated 28-2-2002 in Special Case 1/1990, delivered by the learned

Additional Sessions Judge, Akola, convicting the appellant for offence

punishable under Section 5(1)(d) read with Section 5(2) of the

Prevention of Corruption Act, 1988 (for short "the Act") and offence

2 apeal152.02

under Section 161 of the Indian Penal Code. The appellant is

sentenced to suffer rigorous imprisonment for one year for the offence

punishable under Section 5(1)(d) read with Section 5(2) of the Act.

The appellant is also sentenced to suffer rigorous imprisonment for six

months for the offence punishable under Section 161 of the Indian

Penal Code, the sentences are, however, to run concurrently. The

appellant is also sentenced to pay a fine of Rs.1,000/- each for the

aforesaid offences.

2. The gist of the complaint (Exhibit 48) dated 28-12-1987

lodged by Pradeep Tumsare (P.W.2) which is the genesis of the

prosecution is thus :

P.W.2 is an agriculturist and is also working as a Manager

in Gajanan Video Centre, Kamargaon which is owned by Awdhutrao

Tumsare, the uncle of P.W.2. Since the starting of the video parlour,

P.W.2 and his uncle used to pay Hafta (a bribe installment) of Rs.150/-

per month to one Shingne, the then Entertainment Duty Inspector.

Shri Shingne was transferred and the appellant (hereinafter referred to

as the "accused") was posted in his place. P.W.2 states in the report

that the appellant is working as Entertainment Duty Inspector since

one and half years prior to the lodging of the report. Initially P.W.2

3 apeal152.02

and Awdhutrao paid the accused a monthly Hafta of Rs.150/-. The

video parlour was closed from June 1987 to September 1987 since the

validity of the licence expired. The accused visited Kamargaon in

September 1987 and during the said visit told P.W.2 and Awdhutrao

that he will renew the licence of the video parlour if Rs.800/- is paid to

the accused and Rs.300/- is paid for challan separately. The report

further alleges that in the first week of October 1987, P.W.2 and

Awdhutrao went to Murtizapur and at about 11'O Clock on 2 nd or 3rd

October, 1987 Awdhutrao paid Rs.800/- to the accused in the open

land outside the office of the Sub-Divisional Officer and received the

report of renewal of of licence signed by the Sub-Divisional Officer.

P.W.2 and Awdhutrao came to Akola, submitted the report in the

Entertainment Section of the office of the Collector and received the

licence. The report alleges that thereafter (after receiving the licence)

the accused was paid monthly Hafta of Rs.300/- in October and

November 1987. The report alleges that this enhancement of Hafta

from Rs.150/- to Rs.300/- was when the accused went to Kamargaon

and deal for renewal of licence was fixed for Rs.800/-. The report

states that in consideration of the enhancement of the Hafta, the

accused assured not to file prosecution against P.W.2 or his uncle.

4 apeal152.02

It is alleged in the report that prior to 10-12-1987 accused

came to Kamargaon alone on bicycle, demanded Hafta of Rs.300/-

from P.W.2 and Awdhutrao, accused was given Rs.100/- and told that

the remaining Rs.200/- will be given later on. On 20-12-1987 at 5.30

p.m., the accused came to Kamargaon, he was accompanied by one

person from his house, the accused inspected the tickets, the daily

collection register was not available as Awdhutrao was not present in

the house and the daily collection register could not be shown to the

accused. The accused and the accompanying employee demanded

Rs.200/- which the complainant did not give. The complainant and

Sahebrao, the younger brother of Awdhutrao, did not oblige the

accused when asked to put signature/s on one blank paper. On

25-12-1987 the accused came alone to Kamargaon at 4-00 p.m.,

Awdhutrao was present in the video parlour. At the video parlour the

accused was demanding Rs.200/-, the accused checked daily collection

register and put his signature. Awdhutrao told the accused that he did

not have Rs.200/- and assured that he would send the money on

Monday. P.W.2 also assured the accused that the balance amount of

the Hafta will be given later on. Since P.W.2 and Awdhutrao were not

inclined to pay the illegal gratification, the report (Exhibit 48) was

lodged with the Anti Corruption Bureau on 28-12-1987.

5 apeal152.02

3. The case of the prosecution as is unfolded during the

course of the trial is that pursuant to the said report, the Anti

Corruption Bureau summoned the panchas, made the necessary

preparation for the trap, issued the standard operating procedure/

protocol instructions to the complainant and panchas and the usual

demonstrations were given. The raiding party left the Anti Corruption

Bureau office in a Jeep and reached Murtizapur at 4.15 p.m. P.W.2

complainant and the shadow panch Sudhakar (P.W.3) left on foot to

meet the accused. P.W.2 and P.W.3 went to the office of the accused

located in the premises of Sub-Divisional Officer, Murtizapur. The

accused allegedly asked the complainant if the remaining amount is

brought, the complainant answered in the affirmative, the complainant

said that the accused should take the money and the accused said he

would take the money later on. The accused said that he and the

complainant should have a cup of tea and again the complainant told

the accused that he should accept the money so that the complainant

and the shadow panch (whom the complainant allegedly introduced as

a relative) are free to go. It is the case of the prosecution, that

thereafter the accused parked his scooter at the scooter stand and

asked the complainant and shadow panch to come with him at one

6 apeal152.02

Vyankatesh Touring Talkies. The prosecution contends that the

demand was made and the money accepted in the Manager's office of

Vyankatesh Touring Talkies. The accused is alleged to have accepted

the tainted currency notes by the right hand and kept the same in the

right pant pocket. Upon the arrival of the raiding party, the accused is

alleged to have fled and when chased by the Anti Corruption Bureau

staff to have taken out the money from the right pant pocket, to have

crushed the notes and thrown them in the sweeper handcart near

Veterinary Hospital. The accused was ultimately apprehended by

police constables Sadashiv and Subhash. Both the hands of the

accused were treated with the solution of sodium carbonate and the

colour turned purple. Investigation ensued, statutory sanction was

obtained from the sanctioning authority and the charge-sheet

presented before the learned Special Court.

4. The learned Special Judge framed the Charge (Exhibit 8),

the accused pleaded not guilty and claimed to be tried. The defence of

the accused is of total denial and false implication.

5. Heard Shri A.S. Mardikar, learned Senior Counsel for the

appellant and Shri N.B. Jawade, learned Additional Public Prosecutor

7 apeal152.02

for the respondent.

6. Shri Anil Mardikar, learned Senior Counsel, would urge

that the sanction order Exhibit 113 is vitiated by manifest non-

application of mind and is bad in law and indeed void. He would

invite my attention to the testimony of P.W.12 Shri H.R. Kulkarni

(sanctioning authority) to urge that admittedly letters/documents

Exhibits 46, Exhibit 47 and Exhibit 80 were not forwarded to the

sanctioning authority. The said documents have been seized by the

investigating officer and produced alongwith the charge-sheet. Exhibit

46 is a report dated 25-9-1987 from the accused to the Collector

requesting that action under Rule 14(2) of the Bombay Entertainment

Duty Rules, 1958 be initiated against Gajanan Video Centre,

Kamargaon. Exhibit 47 is again a report dated 21-12-1987 submitted

by the accused to the District Magistrate listing various irregularities

committed by Awadhut Tumsare, the proprietor of Gajanan Video

Centre, Kamargaon and recommending that the licence should not be

renewed for the year 1988. Exhibit 80 is again a report submitted by

the accused on 28-12-1987 recommending to the District Magistrate

that necessary action for breach of conditions of the permit be initiated

against Gajanan Video Centre, Kamargaon. The submission of the

8 apeal152.02

learned Counsel that the suppression of Exhibit 46, Exhibit 47 and

Exhibit 80 from the sanctioning authority is suggestive of an unfair

investigation and more importantly non-application of mind by the

sanctioning authority, thus has substantial substance. In the context of

the motive alleged, these documents may have persuaded

the sanctioning authority to take a different view, if the

documents were made available for the perusal of the sanctioning

authority. The position of law that sanction is not an empty or idle

formality and that it is a sacrosanct act, is too well settled for this

Court to burden the judgment by making a reference to the precedents

cited by the learned Senior Counsel for the appellant. It is true that

sanction is a salutary protection statutorily provided to honest public

servants and is not a shield for the corrupt. The juristic principle is to

ensure that honest public servants are protected from the agony and

humiliation of facing frivolous prosecution. In the factual matrix, the

sanction is clearly vitiated in view of the suppression of Exhibit 46,

Exhibit 47 and Exhibit 80 from the sanctioning authority.

7. The learned Senior Counsel Shri Anil Mardikar would also

contend that neither the demand nor acceptance of illegal gratification

is proved muchless beyond reasonable doubt. The learned Senior

9 apeal152.02

Counsel invites my attention to 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.

10 apeal152.02

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)

8. Equally eloquent and illuminating are the observations of

11 apeal152.02

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 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-

12 apeal152.02

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

13 apeal152.02

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."

9. The learned Senior Counsel contends that a definite

conclusive demand is held to be sine qua non for constituting offence

punishable under the Act. If the demand is not proved, then the

alleged recovery of tainted currency notes pales into insignificance, is

the submission. The learned Senior Counsel further submits that even

in prosecutions under the Act, the accused is presumed to be innocent

till his guilt is established beyond reasonable doubt by proof of demand

and acceptance of illegal gratification. This burden does not shift.

Reliance is placed on the judgment of the Hon'ble Supreme Court in

the case of A. Subair vs. State of Kerala reported in (2009)6 SCC

587, in support of the said submission. The learned Senior Counsel

would further contend that the evidence of the complainant and the

shadow panch must be conclusively scrutinized since they are partisan

witnesses in the sense that they are vitally interested in the success of

trap. The testimony of the complainant must be treated at part with

the testimony of an accomplice, is the submission. The testimony of

14 apeal152.02

the complainant cannot be on a better footing than that an accomplice,

as is held by the Hon'ble Supreme Court in Pannalal Damodar Rathi

vs. State of Maharashtra, 1980 SCC (Criminal) 121, 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.

10. The learned Senior Counsel is right in contending that the

evidence of the complainant must be scrutinized with caution.

Particularly, in the present factual matrix, the evidence must be

scrutinized with utmost caution. The complainant, on his own

admission, is a habitual bribe giver and he and his uncle Awadhut

(P.W.11) were merrily indulging in giving monthly Hafta to the

Entertainment Duty Inspectors, to avoid coercive action.

11. Complainant Pradeep is examined as P.W.2. He states

that the accused was Entertainment Duty Inspector (EDI) from 1986

and prior to that one Shingne was EDI. P.W.2 claims that he was

giving a monthly Hafta (bribe) of Rs.150/- to the accused to avoid

prosecution. He states that from June 1987 to September 1987 the

Video Centre was closed. The accused, whose report was necessary for

15 apeal152.02

renewal, demanded bribe of Rs.800/- to do the needful. The accused

also demanded increase in the monthly Hafta from Rs.150/- to

Rs.300/-. P.W.2 then states that in the month of September, he and

P.W.11 met the accused, gave Rs.800/- to the accused, took the report,

went to the office of the Collector, Akola, deposited Rs.500/- in the

bank at Akola and obtained the renewal of the licence.

12. This version of P.W.2 is falsified by the admissions given in

the cross-examination. The report (Exhibit 50) necessary for renewal

of licence was as a fact received by P.W.11 Awadhut on 31-8-1987 as is

evident from the endorsement at Exhibit 50 which is that of P.W.11.

P.W.2 admits in the cross-examination that he did not visit the office of

Sub-Divisional Officer, Murtizapur on 31-8-1987. The learned Sessions

Judge has recorded a finding in paragraph 77 of the judgment

impugned that the version of payment of Rs.800/- for renewal of

licence is not reliable. I am inclined to come to the same conclusion.

The evidence on initial demand, which is that Hafta be increased from

Rs.150/- to Rs.300/-, is not at all reliable. P.W.2 initially stated that

the demand was made in June or July 1987 and then immediately

retracted and stated that he did not recollect the date. However, the

initial demand is allegedly made when Rs.800/- was demanded for

16 apeal152.02

renewal of licence. I have already recorded a finding that the version

of P.W.2 and P.W.11 that the accused demanded Rs.800/- for renewal

of licence cannot be accepted as trustworthy. The initial demand that

the Hafta (monthly bribe) amount be enhanced from Rs.150/- to

Rs.300/- is allegedly made simultaneously with the demand for

Rs.800/- for renewal of licence. P.W.11 gives a different version as to

when and under which circumstances, the initial demand was made.

He states that this initial demand was made after renewal of licence of

the Video Centre. This is totally inconsistent with the version of P.W.2

who states that the demand was made before the renewal of licence.

P.W.11 states in paragraph 5 of the examination-in-chief that the initial

demand of enhancement of monthly Hafta (bribe amount) from

Rs.150/- to Rs.300/- was made at Kamargaon. P.W.11 does not

remember the month in which the demand was made. The

prosecution evidence on initial demand is not at all confidence

inspiring. P.W.2 has also deposed that before 10-12-1987 the accused

came to Kamargaon to collect the monthly amount and demanded

Rs.300/- from P.W.11. P.W.2 states that accused was paid Rs.100/-

and was assured that Rs.200/- will be paid later. P.W.2 states that

again on 20-12-1987 and 25-12-1987 the accused demanded the

balance amount of Rs.200/- . The complainant and P.W.11 were not

17 apeal152.02

inclined to make payment and lodged the report with A.C.B. on

28-12-1987. P.W.2 states that before 10-12-1987 the amount of

Rs.300/- was demanded from P.W.11, then again on 25-12-1987

balance amount of Rs.200/- was demanded in presence of P.W.11

when the accused visited the Video Centre. P.W.2 states that on 25-12-

1987 after the accused allegedly demanded Rs.200/-, P.W.2, accused

and P.W.11 all went to the residence of P.W.11 and again the accused

demanded the balance amount of Rs.200/-. The evidence of P.W.2 is

not corroborated in material aspects by the evidence of P.W.11. On

the contrary, P.W.11 has deposed that despite payment of Rs.300/- as

the monthly bribe the accused started instituting prosecutions and this

annoyed P.W.11. P.W.11 does not support the version of P.W.2 on any

material aspect. P.W.11 states that when the accused was instituting

the 5th case, he demanded Rs.300/-. P.W.11 is totally silent in which

month the demand was made.

13. I have no hesitation in coming to the conclusion that the

evidence of P.W.2 and P.W.11 cannot be believed and is absolutely

unreliable. The prosecution has miserably failed to establish the initial

demand.

18 apeal152.02

14. Let me now evaluate the evidence on the demand

allegedly made by the accused on the date of the trap.

P.W.2 states that he and P.W.3 shadow panch went inside

the office of the accused and met the accused who was alone. The

accused asked P.W.2 and P.W.3 to sit. The accused then asked P.W.2

as to who was accompanying him and answer given by P.W.2 was that

P.W.3 was his maternal uncle. P.W.2 then states that there was some

discussion with the accused who asked if the old licence was annexed

with the application and P.W.2 replied in the affirmative. It was then

that, according to P.W.2, the accused was summoned by Sub-Divisional

Officer. P.W.2 states that when the accused went to meet Sub-

Divisional Officer, P.W.2 and P.W.3 were standing in a verandah. It

was then that accused asked whether P.W.2 has brought the remaining

amount. P.W.2 said "yes" and then the accused said that they should

go to the bus stand. According to P.W.2, he insisted that since the

maternal uncle was with him (reference is to P.W.3 shadow panch),

the accused should accept the money then and then. However, the

accused then asked P.W.2 to come near Vyankatesh Talkies and P.W.2,

P.W.3 and accused went to Vyankatesh Talkies. They went near the

office of the theatre. One employee was present in the office of

Manager. Accused demanded daily collection report register from the

19 apeal152.02

said employee and then the accused demanded water, the accused,

P.W.2 and P.W.3 drank water. The version of P.W.2 is that the accused

took him aside near tati (a light frame of sticks) and demanded money

which P.W.2 paid. There are material discrepancies and inter se

contradictions between the evidence of P.W.2 and P.W.3. P.W.3 states

that he and the complainant met the accused in his room, some

conversation took place about the application and a query was made as

to whether the old licence is annexed to the application alongwith the

challan. The shadow panch (P.W.3) makes a reference to the

conversion and then states that the accused was summoned by the

Sub-Divisional Officer. P.W.3 then states that when the accused went

to meet the Sub-Divisional Officer, P.W.2 and P.W.3 were waiting in

the verandah in the office. P.W.3 then states that after the accused

came back, again P.W.2 and P.W.3 entered the office of the accused.

This version of the shadow panch is totally inconsistent with the

version of P.W.2. According to P.W.2, after the accused came back

from the office of the Sub-Divisional Officer, he met P.W.2 and P.W.3

in the verandah and it was in the verandah that the accused asked

P.W.2 as to whether the remaining amount is brought. P.W.2 does not

mention that after the accused came back either he or the shadow

panch went inside the office of the accused. On the contrary, the

20 apeal152.02

version of P.W.3 shadow panch is that both he and the complainant

again entered the office of the Sub-Divisional Officer and again there

was some conversation about the action of the accused having annoyed

and P.W.11 and the accused replied that it was his duty. The shadow

panch categorically states that he did not remember that any more

conversation took place between the accused and the complainant. At

this juncture, the prosecutor sought permission to put a leading

question to the witness, which permission was granted by the trial

Court. Even in response to the leading question, which was as to

whether the accused asked P.W.2 Pradeep that he brought the

remaining amount, the shadow panch only states that P.W.2 said that

he had brought money. P.W.3 shadow panch, despite the leading

question, was not inclined to depose that the accused made any

categorical or conclusive demand and all that P.W.3 states in response

to the leading question is that P.W.2 told the accused that he had

brought the money. The shadow panch on his own admission is not a

privy to the conversation which the accused had with the complainant

in the office of touring talkies where the bribe amount was allegedly

lastly demanded and accepted.

21 apeal152.02

15. In my opinion, the prosecution has not established a

definite demand, beyond reasonable doubt.

16. The evidence of P.W.2 and P.W.3 on demand is not

consistent. Indeed, P.W.3 shadow panch has not supported the

prosecution on the aspect of demand. Despite the leading question

put, P.W.3 has not stated that the accused demanded illegal

gratification. P.W.3 has further not heard the conversation between

the accused and the complainant in the office of the manager of the

touring talkies, where the illegal gratification was allegedly demanded

and accepted. The testimony of P.W.2 that the accused demanded

money in verandah of the office is falsified by the testimony of the

shadow panch. The evidence of shadow panch is absolutely silent on

any such demand allegedly made by the accused in his presence. As a

fact, P.W.3 does not even make a reference to any interaction between

the accused and P.W.2 and P.W.3 in verandah. On the contrary, P.W.3

states that when the accused came back after meeting the Sub-

Divisional Officer, P.W.2 and P.W.3 again went inside the office of the

accused. Pertinently, P.W.3 deposes that at that time there was a talk

between the accused and the complainant making a reference to

P.W.11 being annoyed due to the actions of the accused and the

22 apeal152.02

accused replying that it was his job/duty. The only other evidence on

the aspect of demand is the version of P.W.2 that the accused

demanded money in the office of the touring talkies.

17. The evidence of P.W.2, which is not corroborated by

P.W.3, must be discarded as unreliable and untrustworthy. P.W.2 and

P.W.11, according to me, are habitual bribe givers and the prosecution

has brought on record that P.W.11 was annoyed due to the

prosecutions instituted by the accused. The shadow panch (P.W.3)

also makes a reference to the conversation to the said effect.

18. The version of P.W.2 that the accused demanded bribe is

not believable for more reasons than one. It has come on record that

the accused instituted as many as four prosecutions against P.W.2 and

P.W.11. That apart, Exhibit 80 which is a report submitted by the

accused to the District Magistrate recommending that the licence

should not be renewed for the year 1988 in view of the irregularities

committed by P.W.11, is dated 28-12-1987, on the same day the

accused was allegedly trapped. The accused not accepting the bribe

amount then and there, in the comfort of his office although the

complainant allegedly insisted that the amount be accepted, is not

23 apeal152.02

natural. It is inexplicable as to why would be the accused not accept

the bribe when the same was offered, despite having a separate office.

Why would be the accused ask the complainant and the shadow panch

to come with him to the touring talkies and then accept the amount,

therefore, is hardly explained by the over simplistic observation of the

learned Additional Sessions Judge that it is the sweet choice of the

accused where to accept the bribe. The prosecution has to many grey

areas for this Court to hold that definite and conclusive demand is

established. Since the prosecution has not proved the demand beyond

reasonable doubt, the recovery of the tainted currency notes pales into

insignificance and I need not delve much on the discrepancies brought

to my notice as regards the alleged acceptance and recovery of the

tainted currency notes and on the contention of the learned Senior

Counsel that the accused has probablized the defence of thrusting on

the touchstone of preponderance of probabilities.

19. The judgment and order dated 28-2-2002 delivered by the

learned Additional Sessions Judge, Akola in Special Case 1/1990 is

unsustainable in law and facts and is set aside. The accused is

acquitted of the offences punishable under Section 5(1)(d) read with

Section 5(2) of the Prevention of Corruption Act, 1988 and Section

24 apeal152.02

161 of the Indian Penal Code. Bail bond of the accused stands

discharged. Fine, if any, paid by the accused be refunded to him.

The appeal is allowed accordingly.

JUDGE adgokar