Rajendraprasad S/O Shivcharan ... vs The State Of Maharashra
2017 Latest Caselaw 6431 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 299 OF 2000


 1) Rajendraprasad s/o Shivcharan Pande,
     Aged about 40 years, 
     Occupation - Police Sub-Inspector, 
     Police Station, Tumsar, Tahsil-Tumsar,
     District - Bhandara.

 1(a)  Premlata w/o Rajendraprasad Pande,              - (Amended as per
       Aged about 70 year,                                Order dt.14-12-16)
       Occupation - Household, 

 1(b)  Sajneev s/o Rajendraprasad Pande, 
       Aged about 49 years, 

          Both 1(a) and 1(b) R/o 450 Qutlers
          New Building No.10/430, Police 
          Line Takli, Katol Road, Nagpur-440013.

 2) Vijay s/o Avadhabihari Choube,
     Aged about 30 years, 
     R/o Virali (Bk), Police Station Lakhandur,
     District Bhandara.                                ....       APPELLANTS


                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, Tumsar,
 Police Station Tumsar, Tahsil - Tumsar, 
 District - Bhandara.                                  ....       RESPONDENT




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 ______________________________________________________________

     Shri S.A. Bramhe and Smt. Rashi Deshpande, Advocates for the
                                appellant, 
            Shri A.V. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________


                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    22
                                              nd  AUGUST, 2017

 ORAL JUDGMENT : 

The appellants seek to assail the judgment and order

dated 12-10-2000 in Special Case 2/1992, delivered by the learned

Special Judge, Bhandara convicting appellant 1 under Sections 7 and

13(2)(d) read with Section 13(2) of the Prevention of Corruption Act,

1988 (hereinafter referred to as the "Act") and appellant 2 under

Section 12 of the said Act. Appellant 1 is sentenced to suffer rigorous

imprisonment for one year each for the offence punishable under

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

Section 13(2) of the Act and to additionally pay a fine of Rs.1,000/-.

The sentences are directed to run concurrently. Appellant 2 is

sentenced to suffer rigorous imprisonment for one year and to

additionally pay a fine of Rs.500/-.

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2. The case of the prosecution which is unfolded during the

course of trial is that the complainant Chakrapani is the owner of

Niranjan Dantamanjan Factory at Tumsar. One of the six brothers of

the complainant one Shamsundar was told by appellant 1 (hereinafter

referred to as "accused 1") that his maid Durga is accusing

Shamsundar of harassment and sexual exploitation. Shamsundar,

according to the prosecution case, suspected Durga of thievery and had

lodged complaint against the said maidservant who was also arrested.

3. Accused 1 allegedly conveyed to Shamsundar that if

cognizance is taken of the accusations, leveled by Durga, the

maidservant, Shamsundar would face social stigma. A frightened

Shamsundar confided with the complainant who met one Petkar,

Police Inspector. Police Inspector Petkar told the complainant to meet

accused 1 and the complainant accordingly deputed one advocate

Swami to do the needful. The said advocate conveyed to the

complainant that P.S.I. Pande- accused 1 demanded a bribe of

Rs.5,000/- to settle the issue. The complainant lodged a complaint

with the Anti Corruption Bureau, Bhandara on 25-7-1991. The

complaint was reduced into writing and elaborate preparations were

made by Anti Corruption Bureau, Bhandara to lay the trap. The trap

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was attempted on the same day. The complainant alongwith panch

Kalbande went to police station Tumsar. The shadow panch Kalbande

stayed near the scooter, the complainant went inside the police station

and had a conversation with accused 1 who allegedly told the

complainant that he would not be satisfied with Rs.5,000/- and that he

be paid Rs.10,000/- to settle the issue. The complainant returned

alongwith the shadow panch and the first trap did not materialize.

4. It is the case of the prosecution that the demand of

Rs.10,000/- made by accused 1 PSI Pande was conveyed to the Anti

Corruption Bureau. The Anti Corruption Bureau, Bhandara recorded a

supplementary complaint which was reduced to writing and a second

trap was arranged. On 26-7-1991 the complainant contacted accused

1 telephonically to enquire as to when he should meet accused 1 who

allegedly told the complainant not to come and that accused 1 himself

will meet him the next day. The complainant requested accused 1 to

come on the same day and accused 1 agreed. The prosecution

contends that the complainant and the shadow panch for the second

attempt one Wahane waited for accused 1 to come to the factory of the

complainant. The shadow panch Wahane was asked to remain in the

front room which is adjacent to the cabin of the complainant and to

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watch the proceedings. The other panch Kalbande was directed to

remain outside the office and to keep a watch on the proceedings. In

the evening at 6-00 p.m. accused 1 allegedly telephonically asked the

complainant as to whether he is ready to pay the amount to the person

whom accused 1 would be sending to the factory. The complainant

conveyed that he did not have any objection to handover the amount

to the person deputed by accused 1. A panchanama was accordingly

prepared and the complainant was asked to pay the amount to the

accused or to such person who may come to the factory to collect the

amount on behalf of accused 1. Appellant Vijay Choube (hereinafter

referred to as "accused 2") allegedly came to the factory at 7-00 p.m.

and informed the complainant that he was deputed by accused 1.

Accused 2 allegedly asked the complainant to give the amount of

Rs.10,000/- in a packet. The complainant accordingly gave the

amount of Rs.10,000/- in a packet which the accused 2 kept in his pant

pocket. The predetermined signal was given. The raiding party rushed

to the spot and apprehended the accused Vijay Choube. Hands of

accused 2 were dipped in the solution, the colour did not change and

the phenolphthalein test was negative. However, when the solution

was sprinkled on the currency notes which were taken out of the

packet seized from accused 2, purple dots appeared. Investigation

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ensued, accused 1 and 2 were arrested and a charge-sheet was filed in

the special Court. Charge was framed under Sections 7, 13(1)(d) read

with Section 13(2) of the Act against accused 1 and 2 vide Exhibit 21.

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

of the accused as is discernible from statement under Section 313 of

the Criminal Procedure Code is of total denial. Accused 1 has also

taken a defence of false implication. He states in the statement

recorded under Section 313 of the Criminal Procedure Code that

during investigation of crime and misappropriation of the funds of

bank by one Krishna Sharma, his relationship with the complainant

became strained. According to accused 1, one of the suspects/accused

in that crime was one Krishna Sharma who is related to the

complainant. Accused 1 obtained his Mumbai address from the

complainant, however, the complainant pre-warned the said Krishna

Sharma and helped him to abscond and evade the legal process.

According to accused 1, the complainant, his brother and the Advocate

Shri Swami are a coterie and they had threatened accused 1 of false

implication.

5. Heard learned Counsel Smt. Rashi Deshpande for accused

1 and learned Counsel Shri S.A. Bramhe for accused 2 and the learned

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Additional Public Prosecutor Shri A.V. Palshikar for the respondent.

6. The learned Counsel for the accused would submit that

indisputably, the first attempt to trap accused 1 failed. The

complainant allegedly went to Tumsar police station and met accused

1. Strangely, the shadow panch did not accompany the complainant

and remained outside the police station near the scooter. The shadow

panch, who is examined as P.W.2, clearly states in paragraph 2 of the

examination-in-chief that he did not hear the conversation between the

complainant and accused 1 when both of them came out of the police

station in the courtyard. The complainant who is examined as P.W.1

states that when he went to the police station, accused 1 asked him as

to whether the amount is brought. The complainant answered in the

affirmative and then was asked by accused 1 as to how much amount

was brought. The complainant allegedly informed accused 1 that

Rs.5,000/- was brought, upon which accused 1 allegedly told the

complainant that the work shall not be done for Rs.5,000/-. This

version is totally inconsistent with the version of P.W.6 Swami, the

Advocate who allegedly approached accused 1 to negotiate on behalf

of the complainant. According to P.W.6 Swami, accused 1 informed

him that there is a report lodged by the maidservant Durga and that if

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Swami pays Rs.5,000/-, the enquiry will be dropped. The learned

Counsel for accused 1 urges that the evidence on record in relation to

the initial demand is not only inconsistent, is sketchy, vague and

marred by discrepancies and contradictions. The learned Counsel

would urge that the version of the complainant that the accused

demanded Rs.10,000/- and was informed by accused 1 that the work

shall not be done in Rs.5,000/-, is absolutely uncorroborated. At any

rate and in any event, according to the learned Counsel, since the trap

which was attempted on 25-7-1991 did not materialise, the alleged

demand conveyed to the complainant through Shri Swami (P.W.6) and

the conversion which the complainant allegedly had with the accused

in the police station on 25-7-1991 pales into insignificance.

7. The learned Counsel would urge that the alleged demand

on the basis of which the supplementary report of the complainant was

recorded and the second trap attempted on 26-7-1991, is absolutely

uncorroborated. The only evidence in support of the demand for

Rs.10,000/- is the alleged conversation between the complainant and

the accused 1 in the police station which is said to have taken place on

25-7-1991. It is not in dispute that the shadow panch Kalbande did

not hear the said conversation. The testimony of the complainant that

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accused 1 demanded Rs.10,000/- on 25-7-1991 when the first trap was

attempted, is not corroborated by either the shadow panch Kalbande

or by any other ocular or circumstantial evidence on record. The

learned Counsel would urge that since the demand which is a sine qua

non to constitute the offence punishable under Sections 7, 13(1)(d)

read with Section 13(2) of the Act has not been proved, the reliance by

the prosecution on the alleged recovery of the currency notes, that too

placed in a packet and handed over to accused 2, is misplaced and

takes the case of the prosecution no further.

8. The learned Additional Public Prosecutor would urge that

the evidence of P.W.6 Swami amply corroborates the testimony of the

complainant and that the prosecution has, therefore, established the

indispensable essentiality of the constitution of offence. He would

further urge that the prosecution has established beyond any

reasonable doubt that the illegal gratification was accepted by accused

2 on behalf of accused 1 and that there is no infirmity in the judgment

impugned.

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

record and the reasons recorded by the learned Special Judge for

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convicting the accused. I am not persuaded to agree with the learned

Additional Public Prosecutor that the prosecution has established the

offence, muchless beyond reasonable doubt.

10. It is no longer res integra that in order to bring home the

charge under Sections 7, 13(1)(d) read with Section 13(2) of the Act,

it is incumbent upon the prosecution to prove beyond reasonable

doubt that the accused demanded illegal gratification. The proof of

demand is condition precedent and a sine qua non for constituting the

offences punishable under Sections 7, 13(1)(d) read with Section

13(2) of the Act.

11. 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 :

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"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

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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)

12. Equally eloquent and illuminating 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 :

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"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

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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."

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13. The prosecution has miserably failed that accused 1

demanded illegal gratification. The evidence of Swami (P.W.6) is not

confidence inspiring and is inconsistent with the version of the

complainant. There is no corroboration whatever to the version of the

complainant. It is well settled that after the introduction of Section

165-A of the Indian Penal Code, a bribe giver is equally guilty and his

testimony is not on better footing than that of an accomplice. In

Pannalal Damodar Rathi vs. State of Maharashtra, 1988 SCC

(Criminal) 121, the Hon'ble Apex Court has propounded that after the

introduction of Section 165-A of the Indian Penal Code, a person who

offers bribe is guilty of abetment and the testimony of such person

cannot be on a better footing than that of an accomplice. I am not in a

position to hold that the prosecution has proved the offences beyond

reasonable doubt. The evidence is too sketchy, unreliable and grossly

inadequate, both on the demand and acceptance of illegal gratification.

Suspicion, however, strong cannot be permitted to substitute proof. I

am not persuaded to hold that the uncorroborated testimony of the

complainant constitutes proof of demand. The alleged recovery of the

currency notes from a packet handed over to accused 2 at the factory

of the complainant is of no relevance in the absence of proof that

accused 1 demanded illegal gratification, that accused 2 was deputed

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by accused 1 to receive the illegal gratification on behalf of accused 1

and that the amount was voluntarily and willingly accepted by accused

2 on behalf of accused 1 knowing that the amount was towards

payment of illegal gratification. None of the ingredients is established

by the prosecution and the judgment impugned, is manifestly

erroneous on the facts and in law.

14. The judgment and order of the learned Special Judge,

Bhandara dated 12-10-2000 in Special Case 2/1992 is set aside. The

appellant 1 is acquitted of the offences punishable Sections 7 and

13(2)(d) read with Section 13(2) of the Prevention of Corruption Act,

1988. Appellant 2 is acquitted of the offence punishable under Section

12 of the said Act. Bail bonds of the appellants stand discharged. Fine,

if any, paid by the appellants be refunded to them.

JUDGE

adgokar