Bombay High Court
Jagdish Dhanurdhar Kalbage vs State Of Maharashtra on 18 August, 2017
Bench: R. B. Deo
apeal263.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.263 OF 2002
Jagdish Dhanurdhar Kalbage,
Aged about 50 years, Auditor,
Resident of Akola, Dist. Akola. ....... APPELLANT
...V E R S U S...
State of Maharashtra through
Anti Corruption Bureau, Akola
Tah. & Dist. ....... NON-APPLICANT
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Shri R.M. Ahirrao, Advocate for Appellant.
Shri A.V. Palshikar, APP for Non-Applicant.
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CORAM: ROHIT B. DEO, J.
DATE: th
18 AUGUST, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order
dated 06.05.2002 in Special Case 1/1999 delivered by the Special
Judge, Washim by and under which the appellant is convicted for
offences punishable under sections 7, 13(1)(d) read with section
13(2) of Prevention of Corruption Act, 1988 and is sentenced to
suffer rigorous imprisonment for two years and to pay a fine of
Rs.1000/-.
2] Shri Ahirrao, the learned counsel for the appellant
would urge that the judgment impugned militates against the
established position of law that proof that the accused demanded
illegal gratification and voluntarily received the same is a sine quo
none for constituting offences punishable under sections 7 or 13
(1)(d) read with section 13(2) of the Prevention of Corruption
Act, 1988 (hereinafter referred to as "the Act"). He would further
urge that the reasoning of the learned Trial Court for holding that
the demand is proved dangerously borders on perversity.
3] The learned counsel Shri Ahirrao, relies on the recent
judgment of the Apex Court in Mukhtiar Singh (since deceased)
through his L.R. vs. State of Punjab 2017(7) SCALE 702 and in
particular on the observations of the Hon'ble Supreme Court in
paragraph 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."
4] Shri Ahirrao, the learned counsel further relies on
another relatively recent judgment of the Hon'ble Apex Court in
Krishan Chander vs. State of Delhi (2016) 3 SCC 108 and invites
my attention to the observations in paragraph 35, 36 and 37
which 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)
5] Shri Ahirrao, the learned counsel would further urge
that the Hon'ble Supreme Court in Pannalal Damodar Rathi vs.
State of Maharashtra, 1988 SCC (Criminal) 121 has held that after
the introduction of section 165A in the Indian Penal Code, a bribe
giver is equally guilty and his testimony is not on a better footing
than that of accomplice. The learned counsel would urge that the
complainant and the panch witnesses are partisan witnesses since
they are interested in the success of the trap. The learned counsel
would urge that unless the testimony of the complainant or the
panch is corroborated in material particulars and is otherwise
found wholly reliable and trustworthy, it would be unsafe to
convict the accused on the basis of such testimony. The learned
counsel would urge that the accused who is facing a trial under
the Prevention of Corruption Act, 1988 is presumed to be innocent
unless and until the guilt is established beyond reasonable doubt
and an offence punishable under the Prevention of Corruption Act
cannot be treated differently than any other criminal offence.
The presumption of innocence which is available to the accused is
absolute and does not shift.
6] Per contra, the learned A.P.P. Shri Palshikar made a
valiant attempt to support the judgment impugned. He would
urge that the complainant has proved not only the initial demand
on 17.09.1988, he has also proved the demand on the date of the
trap.
7] He would submit that the testimony of the
complainant is P.W.1 who has examined as P.W.1 is corroborated
by the recovery of the tainted currency note from the left side
pocket of the pant worn by the accused.
8] I have anxiously and minutely scrutinized the record,
particularly as the reasoning of the learned Special Judge for
holding that the accused demanded illegal gratification on
18.09.1988 is fallacious and indeed perverse. The shadow panch
who is examined as P.W.4 does not even refer to any demand
made by the accused. P.W.4 states in the examination-in-chief that
the accused expressed that he was in a hurry. This expression of
the accused that he was in a hurry is treated as a demand by the
learned Special Judge. I am afraid, that the finding recorded by
the learned Sessions Judge is clearly perverse.
9] The version of the complainant who is examined as
P.W.1 is that he is the Chairman of a Co-operative Society and the
accused who then was an Auditor was visiting the premises of the
Society to conduct the audit. According to P.W.1, when the
accused conveyed that there were irregularities in the accounts of
the Society, P.W.1 requested the accused that a favourable audit
report be given and that the audit fees be reduced. In response to
the said request, the accused is alleged to have demanded an
amount of Rs.2000/- as illegal gratification. This initial demand is
absolutely uncorroborated.
10] The defence of the accused is of thrusting.
The evidence as to what transpired on 18.09.1988 creates
sufficient doubt in the prosecution version and probabilises the
defence. Both the complainant P.W.1 and the shadow panch
P.W.4 have deposed that on 18.09.1988 twenty currency notes of
Rs.100/- denomination were offered by the complainant to the
accused, the accused received the currency note with his right
hand and put the same in the left side pocket of his pant. It is
neither the version of P.W.1 nor P.W.4 nor of any witness than the
accused counted the notes with both hands. Strangely, the
evidence is that both the hands of the accused tested positive in
the phenolphthalein test. Firstly, I find it difficult to believe that
the accused who was admittedly sitting in a sitting position could
have physically managed to put the currency note in the left side
pocket of the pant with his right hand. Secondly, since it is neither
the version of the complainant nor that of the shadow panch that
the accused touched the currency note which is left hand, there is
absolutely no explanation as to how the left hand of the accused
turned purple when dipped in the solution of sodium carbonate.
This would probablize the defence of thrusting on the touchstone
of preponderance of the probabilities.
11] The prosecution has miserably failed to bring home
the charge much less beyond reasonable doubt.
12] The judgment impugned is set aside. The accused is
acquitted of offences punishable under sections 7, 13(1)(d) read
with section 13(2) of Prevention of Corruption Act, 1988.
13] The bail bond stands discharged.
14] The appeal is allowed. The fine amount paid, if any,
by the appellant shall be refunded to him.
JUDGE
NSN
