Rajendra Nivruti Gaikwad And Anr vs The State Of Maharashtra
2021 Latest Caselaw 3357 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 929 / 2010



1.     Rajendra Nivruti Gaikwad

Age: 41, Occ : Service

R/at. Sidharth Nagar,

B.K. Pagare Chawl, Kolsewadi

Kalyan (E), Dist: Thane.



2.     Shivaji Kautik Patil

Age: 47, Occ : Service

R/at Airoli, AR-1, D-96,

Sector-3, Navi Mumbai                                 .....Appellants

                                          (Orig.Accd no.1 & 2 )

       V/s.

State of Maharashtra                                  ....Respondent


                        * * * *

Mr. Ganesh Gole a/w. Mr. Ateet Shirodkar a/w. Mr.

       Ritesh Ratnam, advocate for the applicants.

Mr. S.R. Agarkar, APP for State.


                        CORAM : SANDEEP K. SHINDE, J.

Tuesday, 23 rd February, 2021.

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ORAL JUDGMENT :

1. It is an appeal under Section 374(2) of the

Criminal Procedure Code, 1973 against the conviction

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

13(2) of the Prevention of Corruption Act, 1988 and

sentence of one year rigorous imprisonment, and fine

Rs.1,000/-, in default, imprisonment for one month for

each offence imposed in Special Case No.1/2007 by the

Special Judge, (Anti-Corruption), Thane by judgment and th order dated 14 October, 2010.

2. Prosecution case in brief is, that

accused no.1 a Traffic Constable and accused no.2

a Police Naik, were to regulate the traffic in Thane

City. Alleged, that accused no.1 demanded bribe Rs.50/-

from the complainant, for returning driving license,

which was taken for alleged violation of traffic rules.

Complainant, thus approached the Anti-Corruption

Bureau. After drawing a pre-trap panchanama,

Complainant and the panch witness, Patange reached

the spot. At the relevant time, accused no.1 could

not be seen around, but instead Police Naik-accused no.2 was regulating the traffic. Complainant

enquired with accused no.2 about accused no.1,

whereupon, accused no.2 told him that, accused no.1 had Rane 3/9 Appeal-929-2010 23.2.2021,Tuesday

given his license to him. After a while, accused no.1

reached the spot, who then asked the complainant to

pay Rs.50/- to accused no.2 and collect the license from

him. Consequently, license was handed over by accused

no.2 to the complainant, after accepting Rs. 50/- after

which, accused no.2 was apprehended and tainted

currency notes were recovered from his possession.

Following completion of investigation, previous sanction

under Section 19 of the Act was granted. The learned

trial Court, upon appreciating the evidence of the

complainant-P.W.1, Panch Witness, Patange-P.W.2,

Sanctioning Authority and/or Investigating Officer

convicted the accused of offence punishable under Section

7 and Section 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act and sentenced them to

suffer for one year and fine with default stipulation. It

is against conviction and sentence, the Appeal is

preferred.

3. Heard Mr. Gole, learned Counsel for the

appellants and Mr. Agarkar, learned Prosecutor for the

State.

4. Mr. Gole, learned Counsel for the appellants

has taken me through the evidence of the complainant Rane 4/9 Appeal-929-2010 23.2.2021,Tuesday

and the panch witness and would submit that neither

the complainant nor panch witness supported the

prosecution, on the point of demand of illegal

gratification. Mr. Gole submitted, that the learned trial

Court did not appreciate the evidence of these two

witnesses in right perspective and recorded erroneous

finding that prosecution has proved, demand of illegal

gratification beyond reasonable doubt. Mr. Gole, would

also submit that the complaint lodged by the

complainant was against accused no.1 and the pre-trap

panchanama indicates that, tainted money was to be

handed over to the accused no.1, once he makes a

demand. Mr. Gole, submits that, though trap was laid

as against the accused no.1, however, the tainted

currency was allegedly recovered from accused no.2. It

is therefore submitted that, in absence of evidence of

pre-arrangement between accused nos.1 and 2 and

complainant that accused no.2, would accept the bribe

on behalf of accused no.1, the recovery of tainted

currency from accused no.2, does not further prosecution

case. In support of his contention, Mr. Gole, has relied

on the judgment of the Apex Court in the case of Sadashiv Mahadev Yavaluje & anr. V/s. State of

Maharashtra, 1990 (1) SCC 299. On these submissions,

he seeks acquittal of the appellants-accused.

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5. Mr. Agarkar, learned Prosecutor would support

the impugned conviction and sentence and submits that,

this Court should not interfere with the findings when

it is founded on cogent and reliable evidence, unless it

is perverse. He seeks dismissal of appeal.

6. It is well settled that, demand of illegal

gratification is sine-qua-non for constituting the offence

under the 1988 Act. Mere recovery of tainted money is

not sufficient to convict the accused. Mere receipt of

amount by the accused is not sufficient to fasten the

guilt in absence of any evidence with regard to 'demand'

and 'acceptance' of the amount as illegal gratification, as

held by the Apex Court in the case of State of Punjab

V/s. Madan Mohanlal Verma, reported in 2013 (14) SCC

153.

7. To test the arguments of Mr. Gole that,

prosecution has not proved the 'demand', I have

minutely assessed the evidence of the complainant and,

of, panch witness. Complainant-Dalvi, in his testimony

all over said, that Rs.50/- were demanded by the accused no.1 towards fine for traffic offence. Neither in

examination-in-chief nor in cross-examination, he would

allege that Rs.50/- were demanded by accused no.1 as Rane 6/9 Appeal-929-2010 23.2.2021,Tuesday

illegal gratification for releasing the driving license

which was kept back by him. In para-8, while under

cross-examination, the complainant testified that;

"When I was stopped, I was asked for papers of motorcycle so also my driving license. The papers were returned to me but driving license was not returned. Accordingly to me, my license was not returned to me for no reason. He had demanded the fine amount but I said him that I had no money. I did not lodge any complaint to the Superior officers to complaint against accused no.1 for retaining my license. It is not true that he said to me that he was there for the whole day and I can pay the fine amount at any time and get that license. (emphasis supplied)

8. Thus, it is notable that, the complainant was

not sure or was unclear, that Rs.50/- demanded, were as

illegal gratification or towards fine. In the backdrop of

the complainant's evidence, let me assess the evidence of panch witness, Patange. This witness testified that,

when he reached on the spot, accused no.1 was not seen Rane 7/9 Appeal-929-2010 23.2.2021,Tuesday

around, however, accused no.2 was present in his place.

In cross-examination, this witness testified thus :

"After we went to the spot, we did not meet the accused no.1-Mr. Gaikwad for about 45 minutes. When we met him, complainant initiated talk about the return of license with him. Correct to state that, accused no.1-Mr. Gaikwad did not make any demand for money from complainant, and took him to accused no.2-Mr. Patil. Correct to state that complainant told accused no.1-Mr. Gaikwad about return of his driving license and of having brought the amount as per his say. After complainant met accused no.2-Mr. Patil, accused no.1-Gaikwad did not stay back but went away from there.

9. The testimony of the panch witness, as

reproduced above, therefore makes it clear that accused

no.1 did not demand bribe from the complainant. Infact,

his testimony suggests, the complainant volunteered and told accused no.1 that he had brought the money,

whereafter accused no.1 went ahead.

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10.          Thus,     reading        of     the     evidence     of     the

complainant and panch witness conjointly, it leads me to

hold that the prosecution has not proved the 'demand' of

illegal gratification, which is an essential requirement for

proving the charge under Section 7 of the Prevention of

Corruption Act. As stated above, the Apex Court in the

case of State of Punjab (supra), has held that, mere

receipt of the amount by the accused, is not sufficient

to fasten the guilt in absence of any evidence with

regard to demand, is squarely applicable to the facts of

this case.

11. It is not prosecution case that, while accused

no.1 demanded Rs.50/-, accused no.2 was present. It is

also not prosecution case that, accused no.1 at the time

of demanding Rs.50/- told the complainant that, he

would hand over the license to accused no.2, which he

may collect from him after paying Rs.50/-. In the

circumstances and in absence of any evidence on record

of such understanding and arrangement made known to

the complainant, the recovery of tainted money from

accused no.2, would not, ipso-facto, establish that it was accepted by accused no.1 through accused no.2 as illegal

gratification. Thus, prosecution has not proved, that

accused no.1 attempted to obtain undue advantage Rane 9/9 Appeal-929-2010 23.2.2021,Tuesday

through accused no.2. In the case of Sadashiv V/s.

State of Maharashtra, SCC 299, tainted money was

recovered from the co-accused on the allegation that, it

was accepted by him on behalf of the co-accused. The

conviction impugned in the cited judgment was set aside

by the Hon'ble Supreme Court, after noting that, at

the time of demanding the alleged bribe of Rs.100/-, the

accused from whom the money was recovered was not

present. On this premise, it was held, accused no.2

was not a party to demand and therefore he could not

have been convicted.

12. Be that as it may, in the case in hand, since

the prosecution has failed to prove the demand of illegal

gratification beyond reasonable doubt, the impugned

conviction and the sentence is required to be quashed

and set aside and accordingly quashed and set aside.

13. Appeal is allowed. Bonds executed by the

appellants are cancelled and sureties are discharged. The

fine amount, if any, paid be returned to the appellants.

The Appeal is disposed off.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.       Date:
Sawant   2021.02.25

                                                          (SANDEEP K. SHINDE, J.)
         14:53:00
         +0530