Bombay High Court
Sunil Vasantrao Deshpande vs State Of Maharashtra Thr. Anti ... on 6 August, 2024
2024:BHC-NAG:8673
Judgment
262 apeal430.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.430 OF 2006
Sunil Vasantrao Deshpande,
aged 48 years,
occupation service,
resident of Atmnand Cooperative
Housing Society, Manpada Road,
Dombiwali (E),
Mumbai. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Anti Corruption Bureau,
Nagpur. ..... Respondent.
===================================
Shri K.D.Shukla, Counsel for the Appellant.
Mrs.H.N.Prabhu, Additional Public Prosecutor for the State.
===================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 19/07/2024
PRONOUNCED ON : 06/08/2024
JUDGMENT
1. By this appeal, the appellant (the accused) has
challenged judgment and order of conviction and sentence dated
31.7.2006 passed by learned Judge, Special Court for ACB,
Nagpur (learned Judge of the trial court) in Special Case
No.3/2002 whereby he is convicted for offence punishable under
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Section 7 of the Prevention of Corruption Act, 1988 (the said Act)
and sentenced to undergo rigorous imprisonment for one year and
to pay fine Rs.1000/-, in default, to undergo further rigorous
imprisonment for three months.
He is also convicted for offence punishable under Section
13(1)(d) read with 13(2) of the said Act and sentenced to
undergo rigorous imprisonment for one year and to pay fine
Rs.1000/-, in default, to undergo further rigorous imprisonment
for three months.
2. Brief facts of the prosecution case are as under:
The accused, at the material time, was working as
Divisional Manager in Leather Industries Development
Corporation Limited, Nagpur. On 12.10.2000, Tikaram Mohkar
(the complainant) submitted an application for loan of
Rs.18000/- as a scheme was introduced by the Government to
grant 50% subsidy on total sanction loan. Accordingly, Rs.9000/-
was sanctioned and the case was submitted to the Bank of India,
Mowar Branch, tahsil Narkhed, district Nagpur along with
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sanction order and cheque Rs.9000/-. The complainant along
with his brother Sanjay had been to the office of the accused on
10.4.2001 and it was alleged that at the relevant time, the
accused demanded amount Rs.3000/- for issuing cheque of
Rs.9000/-. The complainant again visited the office of the
accused on 12.4.2001 in respect of his loan case and at the
relevant time also, the accused demanded amount of Rs.3000/-
and agreed to accept the same on 12.4.2001. As the complainant
was not inclined to pay the amount, he approached the office of
the Anti Corruption Bureau at Nagpur (the bureau) and lodged a
report.
3. After receipt of the report, officers of the bureau called
two panchas. In presence of panchas, the complainant narrated
the incident, which was verified by panchas from the First
Information Report. After following a due procedure, it was
decided to conduct a raid and panchas and the complainant were
called. The complainant produced 30 notes of Rs.100/-
denomination. The demonstration as to use and characteristics of
phenolphthalein powder and sodium carbonate was shown. The
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said solution was applied on the tainted amount and the same was
kept in shirt pocket of the complainant. The complainant and
pancha No.1 Umakant Shende were instructed. As per
instructions, pancha No.1 was asked to remain with the
complainant and pancha No.2 was asked to remain with raiding
party members. The complainant was instructed to hand over the
amount only on demand. Accordingly, pre-trap panchanama was
drawn. After the pre-trap panchanama, the complainant and
pancha No.1 went to the office of the accused and other raiding
party members followed them. The complainant approached the
accused and enquired about his work. As per allegation, the
accused demanded the amount and the complainant handed over
the same, which was accepted by the accused and kept beneath of
a register on table. Thereafter, the complainant gave a signal and
other party members came and caught the accused. The amount
was recovered from the table. The hand wash of the accused as
well as the complainant was obtained. Accordingly, post-trap
panchanama was drawn. The investigating officer obtained a
sanction. After completion of investigation, chargesheet was filed
against the accused.
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4. During trial, the prosecution examined in all five witnesses
namely Sudhakar Shyamraoji Dhote vide Exhibit-20 (PW1), the
carrier; Umakant Shende vide Exhibit-24 (PW2), the Shadow
Pancha; Tikaram Mohkar vide Exhibit-35 (PW3), the
Complainant; Ramhari Shinde vide Exhibit-37 (PW4), the
Sanctioning Authority, and Prakash Pawar vide Exhibit-43 (PW5),
the Trap Officer.
5. Besides the oral evidence, the prosecution placed reliance
on personal search of the complainant Exhibit-25, pre-trap
panchanama Exhibit-26, seizure memos Exhibits-27, 28, and 30
map Exhibit-31, post-trap panchanama Exhibit-36, sanction order
Exhibit-39, report Exhibit-45, First Information Report Exhibit-47,
Chemical Analyzer's Report Exhibit-52.
6. After considering the evidence adduced during the trial,
learned Judge of the trial court held the accused guilty and
convicted and sentenced him as the aforesaid.
7. Heard learned counsel Shri K.D.Shukla for the accused
and learned Additional Public Prosecutor Mrs.H.N.Prabhu for the
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State. I have been taken through the entire evidence on record so
also the judgment impugned in the appeal.
8. Learned counsel for the accused submitted that the
judgment impugned in the appeal is not in accordance with law.
There was no valid sanction as well as the prosecution failed to
prove the demand and acceptance. He submitted that as a matter
of fact, even the sanction to prosecute the accused, as
contemplated under Section 19 of the said Act, was bad in law as
it was accorded without application of mind and, therefore, the
conviction of the accused stood vitiated. He further submitted
that the evidence of complainant PW3 Tikaram Mohkar and
Shadow Pancha PW2 Umakant Shende is not consistent.
Independent witnesses, in whose presence the demand was made,
are not examined. There is no corroboration as to the previous
demand also. As far as the demand on the day of the trap is
concerned, the evidence of the complainant and the Shadow
Pancha is not consistent and not inspiring confidence. As such,
the judgment impugned in the appeal deserves to be quashed and
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set aside and the accused is to be acquitted of the charge levelled
against him.
9. In support of his contentions, learned counsel for the
accused placed reliance on the decision of the Honourable Apex
Court in the case of Neeraj Dutta vs. State (Govt.of NCT of
Delhi)1.
10. Per contra, learned Additional Public Prosecutor for the
State submitted that no prejudice is caused to the accused due to
the sanction by incompetent person. There is a bar under Section
19(3) of the said Act to raise issue regarding validity of sanction.
She further submitted that the evidence of complainant PW3
Tikaram Mohkar and Shadow Pancha PW2 Umakant Shende is
consistent as far as the demand and acceptance is concerned.
Thus, the appeal is devoid of merits and liable to be dismissed.
11. In support of her contentions, learned Additional Public
Prosecutor for the State placed reliance on following decisions:
1. State of Madhya Pradesh vs. Jiyalal2;
1 2023 SCC OnLine SC 280
2 (2009)15 SCC 72
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2. State by Police Inspector vs. V.T.Venkateshwar Murthy3;
3. Neeraj Dutta vs. State (Govt.of NCT of Delhi)4.
12. Since question of validity of the sanction has been raised
as a primary point, it is necessary to discuss an aspect of sanction.
The sanction order was challenged on ground that the sanction
was accorded without application of mind and mechanically and
Sanctioning Authority PW4 Ramhari Shinde is not competent to
accord the sanction.
13. In order to prove the Sanction Order, the prosecution
placed reliance on the evidence of Sanctioning Authority PW4
Ramhari Shinde. As per his evidence, at the relevant time, he was
working as Managing Director, Maharashtra State Charmodyog
Vikas Mahamandal, Mumbai. On 29.9.2001, he received a letter
from the office of the bureau and also investigation papers
including complaint and panchanamas. He studied all documents
and satisfied that it was a fit case to grant sanction. Accordingly,
he accorded the sanction (Exhibit-39). He further deposed that
the Board of Directors are appointing and removing authority of
3 AIR 2004 SC 5517
4 2023 SCC OnLine SC 280
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the accused. The Board of Directors consists of three IAS Officers
and a Government Nominated Chairman. He was one of directors
was empowered to look after day to day affairs of the
Corporation. The powers were deleted to him to accord sanctions
to prosecute persons.
14. Cross examination of Sanctioning Authority PW4 Ramhari
Shinde shows that the Leather Industries Development
Corporation is an undertaking of the Government of Maharashtra.
He admitted that he is unable to point out provisions by which
powers can be deleted to him to accord sanction. There was no
Resolution passed by the Board of Directors empowering him to
accord sanction. He further admitted that the accused was
authorized to recover dues of the Corporation. If a person has
already availed benefits of the Scheme and wants to refund
benefits, the accused was authorized to receive amounts and issue
receipts. It further came in his cross examination that from the
letter it revealed to him that complainant PW3 Tikaram Mohkar
was not entitled for the benefit of the Scheme as Sanjay Mohkar,
the brother of the complainant, already availed the benefits of the
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said Scheme. If Sanjay Mohkar would have returned the benefits
already taken or the complainant would have returned such
benefits, the complainant was entitled for such benefits of the
Scheme.
Thus, the cross examination of this witness shows that
from the material, which came before him, it reveals that an
endorsement was on the letter that the complainant was not
entitled for the benefits of the Scheme as his brother had already
availed the said benefits.
15. Perusal of the Sanction Order reveals that Sanctioning
Authority PW4 Ramhari Shinde reproduced the entire prosecution
story in second last paragraph, it is observed that upon carefully
reading papers of investigation and after carefully evaluating the
evidence, he satisfied that there is an adequate evidence to
prosecute the accused and he accorded the sanction. The
evidence of the Sanctioning Authority shows that the Board of
Directors was appointing and removing authority of the accused
and he is one of Directors. The Board of Directors consists of a
Government Nominated Chairman. His evidence further shows
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that other Directors have delegated powers in his favour to accord
the sanction. On the basis of the above evidence, the prosecution
claimed that it proved the Sanction Order.
16. Perusal of the Sanction Order nowhere discloses that
powers were delegated in favour of Sanctioning Authority PW4
Ramhari Shinde and, therefore, he applied his mind and accorded
the sanction.
17. Whether sanction is valid or not and when it can be called
as valid, the same is settled by various decisions of the
Honourable Apex Court as well as this court.
18. The Honourable Apex in the case of Mohd.Iqbal Ahmad
vs. State of Andhra Pradesh5 has held that what the Court has to
see is whether or not the sanctioning authority at the time of
giving the sanction was aware of the facts constituting the offence
and applied its mind for the same and any subsequent fact
coming into existence after the resolution had been passed is
wholly irrelevant. The grant of sanction is not an idle formality or
an acrimonious exercise but a solemn and sacrosanct act which
5 1979 AIR 677
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affords protection to government servants against frivolous
prosecutions and must therefore be strictly complied with before
any prosecution can be launched against the public servant
concerned.
19. The Honourable Apex Court, in another decision, in the
case of CBI vs. Ashok Kumar Agrawal6, has held that sanction lifts
the bar for prosecution and, therefore, it is not an acrimonious
exercise but a solemn and sacrosanct act which affords protection
to the government servant against frivolous prosecution. There is
an obligation on the sanctioning authority to discharge its duty to
give or withhold sanction only after having full knowledge of the
material facts of the case. The prosecution must send the entire
relevant record to the sanctioning authority including the FIR,
disclosure statements, statements of witnesses, recovery memos,
draft charge sheet and all other relevant material. It has been
further held by the Honourable Apex Court that the record so sent
should also contain the material/document, if any, which may tilt
the balance in favour of the accused and on the basis of which,
the competent authority may refuse sanction. The authority itself
6 2014 Cri.L.J.930
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has to do complete and conscious scrutiny of the whole record so
produced by the prosecution independently applying its mind and
taking into consideration all the relevant facts before grant of
sanction while discharging its duty to give or withhold the
sanction. The power to grant sanction is to be exercised strictly
keeping in mind the public interest and the protection available to
the accused against whom the sanction is sought. The order of
sanction should make it evident that the authority had been aware
of all relevant facts/materials and had applied its mind to all the
relevant material. In every individual case, the prosecution has to
establish and satisfy the court by leading evidence that the entire
relevant facts had been placed before the sanctioning authority
and the authority had applied its mind on the same and that the
sanction had been granted in accordance with law.
20. The Honourable Apex Court, in the case of State of
Karnataka vs. Ameerjan7, held that it is true that an order of
sanction should not be construed in a pedantic manner. But, it is
also well settled that the purpose for which an order of sanction is
required to be passed should always be borne in mind. Ordinarily,
7 (2007)11 SCC 273
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the sanctioning authority is the best person to judge as to whether
the public servant concerned should receive the protection under
the Act by refusing to accord sanction for his prosecution or not.
For the aforementioned purpose, indisputably, application of mind
on the part of the sanctioning authority is imperative. The order
granting sanction must be demonstrative of the fact that there had
been proper application of mind on the part of the sanctioning
authority.
21. The view in the case of State of Karnataka vs. Ameerjan
supra is the similar view expressed by this court in the case of
Anand Murlidhar Salvi vs. State of Maharashtra8.
22. Learned Additional Public Prosecutor for the State placed
reliance on the decision of State by Police Inspector vs.
V.T.Venkateshwar Murthy supra wherein it is held that a combined
reading of sub-sections (3) and (4) of Section 19 of the said Act
makes the position clear that notwithstanding anything contained
in the Code no finding, sentence and order passed by a Special
Judge shall be reversed or altered by a Court in appeal,
8 2021 SCC OnLine Bom 237
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confirmation or revision on the ground of the absence of, or any
error, omission or irregularity in the sanction required under sub-
section (1), unless in the opinion of that court a failure of justice
has in fact been occasioned thereby.
23. In the case of State of Madhya Pradesh vs. Jiyalal supra
even if it was to be accepted that there has been an 'error,
omission or irregularity' in the passing of the sanction order,
learned Single Judge of the High Court has not made a finding
which shows that a serious failure of justice had been caused to
the Respondent.
24. Here, in the present case, the Sanction Order was not only
challenged on the ground of incompetency but also it was
challenged on the ground of non-application of mind.
25. In view of the settled principles of law, it is crystal clear
that the sanctioning authority has to apply his own independent
mind for generation of its satisfaction for sanction. An order of
sanction should not be construed in a pedantic manner. The
purpose for which an order of sanction is required, the same is to
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be borne in mind. In fact, the sanctioning authority is the best
person to judge as to whether public servant concerned should
receive protection under the said Act by refusing to accord
sanction for his prosecution or not.
26. Thus, the application of mind on the part of the
sanctioning authority is imperative. The orders granting sanction
must demonstrate that he/she has applied his/her mind while
according sanction.
27. After going through the evidence of Sanctioning Authority
PW4 Ramhari Shinde, though he stated that after reading and
evaluating evidence, he accorded the sanction, the material
placed before him during cross examination sufficiently shows
that complainant PW3 Tikaram Mohkar was not entitled for the
benefits of the Scheme as his brother Sanjay had already availed
the benefits of the said Scheme as the same is revealed to him
from the endorsement of the office on letter Article-P4. He
further admitted that if brother of the complainant would have
returned the benefits already taken or the complainant would
have returned such benefits, the complainant was entitled for
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such benefits of the Scheme. This vital aspect is not considered by
the Sanctioning Authority while according the sanction. The
evidence on record shows that powers were delegated to him.
Perusal of the Sanction Order nowhere discloses powers were
delegated to him. No Resolution is placed on record to show that
he was delegated with powers to accord the sanction.
28. Admittedly, the grant of sanction is a serious exercise of
power by the competent authority. It has to be apprised of all the
relevant materials and on such materials the authority has to take
a conscious decision as to whether the facts would show the
commission of the offence under the relevant provisions. No
doubt, elaborate discussion is not required, however, the decision
making on relevant materials should be reflected in the order.
29. After going through the evidence of Sanctioning Authority
PW4 Ramhari Shinde, admittedly, the Sanction Order nowhere
reflects who has applied mind and which documents are
considered by the sanctioning authority and on what basis the
sanctioning authority came to the conclusion that the sanction is
to be accorded to launch prosecution against the accused. As far
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as the sanction is concerned, no finding is recorded by learned
Judge of the trial court as to validity of the sanction.
30. Besides the issue of the sanction, the prosecution claimed
that the accused demanded gratification amount and accepted the
same.
31. To prove the demand and acceptance, the prosecution
mainly placed reliance on the evidence of complainant PW3
Tikaram Mohkar. As per his evidence, he received a letter from
Mahatma Fule Development Corporation and, therefore, he
approached the accused and the accused informed him that his
loan cannot be sanctioned, however he would manage his
application for sanction and demanded Rs.3000/- from him. At
the relevant time, his brother accompanied him. He further
deposed that on 12.4.2001 again he approached the accused
along with one Amar Daryani and in his presence also the accused
demanded amount Rs.3000/- and said Amar Daryani enquired the
accused why the amount was required and the accused informed
him that the application of the complainant was not worth for
sanction and any how he would manage for the sanction and,
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therefore, amount Rs.3000/- was required. He also narrated
various events took place during the pre-trap panchanama. As to
the demand, on the day of the trap, his evidence is that he and
Shadow Pancha PW2 Umakant Shende went to the office of the
accused and the accused was present. He enquired with the
accused about his cheque and the accused asked about his work
and, thereafter, the complainant handed over the amount to the
accused. The accused accepted the same with his both hands and
kept beneath of a register on table. The accused handed over the
cheque to him and, thereafter, he gave a signal to the raiding
party members and the accused was caught. He further stated
that in the mean time, the accused went for a washroom and
washed his hands. The Trap Officer caught the accused and
enquired with Shadow Pancha PW2 Umakant Shende and the
Shadow Pancha informed about the demand and acceptance and
also informed that the amount is kept beneath of the register on
the table which was seized. The hand wash of the accused and
the complainant was obtained.
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Thus, this evidence shows that the accused asked him
whether his work was done and he handed over the amount.
32. To corroborate the version of complainant PW3 Tikaram
Mohkar, the prosecution examined Shadow Pancha PW2
Umakant Shende, who testified about the fact he acted as pancha
and various events took place during the pre-trap panchanama.
As to the demand and acceptance, his evidence is that he and the
complainant approached the accused. The complainant asked the
accused whether work was done and the accused answered in
affirmative. Thereafter, the accused asked whether he had
brought the amount and the complainant answered in affirmative.
On which, the accused told that first to give the amount. On
which, the complainant handed over the amount. The accused
received the amount, counted the same, and kept beneath of a
register on the table. Thereafter, the accused went to washroom
and washed his hands. In the mean time, the complainant gave a
signal and the accused was caught. The amount was recovered
from the table. The hand wash of the accused was taken which
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turned purple. The hand wash of the complainant was also taken
which also turned purpose. Accordingly, the amount was seized.
33. The cross of complainant PW3 Tikaram Mohkar shows
that Sanjay Mohkar is his brother, who obtained the benefits
under the Scheme. He admitted that the accused informed him
that his brother had received loan amount, but he denied that as
his brother has received the benefits, he was not entitled for the
said benefits. His cross examination shows that he obtained
amount Rs.3000/- from Amar Daryani in the office of the bureau
and handed it over to the Trap Officer.
Thus, the evidence of the said witness shows that at the
time of first demand, his brother was along with him. At the time
of second demand, one Amar Daryani was along with him. His
evidence further shows that he has not disclosed before the Trap
Officer that when he asked the accused for the cheque and the
accused asked him whether his work was done.
Thus, the evidence of the said witness as to the demand on
the day of the trap is an improvement.
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34. Whether the evidence of complainant PW3 Tikaram
Mohkar and Shadow Pancha PW2 Umakant Shende is consistent
on the point of demand on the day of the trap, the same is
required to be taken into consideration.
35. As per the evidence of complainant PW3 Tikaram Mohkar,
he asked the accused whether his work was done and the accused
also asked him whether he had brought it. The cross examination
shows that it is an improvement. Whereas, the evidence of
Shadow Pancha PW2 Umakant Shende shows that the
complainant asked the accused whether work was done and the
accused answered in affirmative. Thereafter, the accused asked,
whether he brought it and also asked the complainant
complainant to pay the amount first.
36. The cross examination of Shadow Pancha PW2 Umakant
Shende shows that due to lapse of time, he is unable to remember
conversations between the accused and the Trap Officer. The
cross examination further shows that he is unable to recollect
whether the complaint was read over by him. As to signatures on
panchanamas, he stated that his signatures were obtained
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subsequently on the next day. He further stated that due to the
lapse of time, he is unable to recollect conversations between the
accused and complainant PW3 Tikaram Mohkar.
37. Thus, the entire cross examination of Shadow Pancha PW2
Umakant Shende shows that he is unable to recollect the
conversations between the complainant and the accused. His
version as to the conversation between the accused and the Trap
Officer and as to signatures on documents is also contrary to the
evidence of the Investigating Officer since as per the investigating
officer, signatures were obtained on the same day. Whereas, as
per Shadow Pancha PW2 Umakant Shende, signatures were
obtained on the next day.
38. The evidence on record shows that on the day of the first
demand, complainant PW3 Tikaram Mohkar was accompanied by
his brother Sanjay and on the day of the subsequent demand also,
the complainant was accompanied by one Amar Daryani.
Admittedly, both witnesses are not examined by the prosecution.
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39. It is settled law that evidence of complainant should be
corroborated in material particulars.
40. In the case of Panalal Damodar Rathi vs. State of
Maharashtra9 supra, it is observed by the Honourable Apex Court
that after introduction of Section 165-A of the Indian Penal Code
making the person who offers bribe guilty of abetment of bribery,
the complainant cannot be placed on any better footing than that
of an accomplice and corroboration in material particulars
connecting the accused with the crime has to be insisted upon.
The evidence of the complainant regarding the conversation
between him and the accused has been set out earlier. As the
entire case of the prosecution depends upon the acceptance of the
evidence relating to the conversation between the complainant
and the appellant during which the appellant demanded the
money, whether this part of the evidence of the complainant has
been corroborated.
41. While deciding the issue involving the offence under the
said Act, a fact required to be considered is that the evidence of
9 (1979)4 SCC 526
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complainant PW3 Tikaram Mohkar will have to be scrutinized
meticulously. The testimony of such person requires careful
scrutiny.
42. In the case of M.O.Shamsudhin vs. State of Kerala10, it has
been held that word " accomplice" is not defined in the Evidence
Act. It is used in its ordinary sense, which means and signifies a
guilty partner or associate in crime. Reading Section 133 and
Illustration (b) to Section 114 of the Evidence Act together the
courts in India have held that while it is not illegal to act upon the
uncorroborated testimony of the accomplice the rule of prudence
so universally followed has to amount to rule of law that it is
unsafe to act on the evidence of an accomplice unless it is
corroborated in material aspects so as to implicate the accused.
43. In the case of Bhiva Doulu Patil vs. State of Maharashtra 11
wherein it has been held that the combine effect of Sections 133
and 114, illustration (b) may be stated as follows:
"According to the former, which is a rule of law, an
accomplice is competent to give evidence and
10 (1995)3 SCC 351
11 1963 Mh.L.J. (SC) 273
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according to the latter which is a rule of practice it is
almost always unsafe to convict upon his testimony
alone. Therefore though the conviction of an accused
on the testimony of an accomplice cannot be said to
be illegal yet the Courts will, as a matter of practice,
not accept the evidence of such a witness without
corroboration in material particulars."
44. Thus, in catena of decisions, it is held that the complainant
himself is in the nature of accomplice and his story prima facie
suspects for which corroboration in material particulars is
necessary.
45. In the case of Mukhtiar Singh (since deceased) through his
LR vs. State of Punjab 12, it is held that statement of complainant
and inspector, the shadow witness in isolation that the accused
had enquired as to whether money had been brought or not, can
by no mean constitute demand as enjoined in law. 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.
46. Besides the evidence of complainant PW3 Tikaram
Mohkar and Shadow Pancha PW2 Umakant Shende, the
12 2017 SCC ONLine SC 742
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prosecution also placed reliance on the evidence which is
circumstantial in nature.
47. As per the evidence of complainant PW3 Tikaram Mohkar
and Shadow Pancha PW2 Umakant Shende, after the trap, the
hand wash of the accused was obtained.
As per the evidence of Trap Officer PW5 Prakash Pawar
also, the hand wash of the accused was obtained.
The Chemical Analyzer's Report Exhibit-52, also shows
contents of Exhibit-123 that pink colour liquid contains
phenolphthalein powder and sodium carbonate.
The evidence of the complainant and the Shadow Pancha
consistently shows that after acceptance of the amount by the
accused and before he was caught, the accused had been to
washroom and came after washing his hands.
Trap Officer PW5 Prakash Pawar, has also admitted during
his cross examination that before members of raiding party
arrived at the hall, the accused went for answering nature's call.
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Thus, consistent evidence is that before the accused was
caught and after allegedly he accepted the amount, he had been
to washroom and came after washing hands.
In the light of the above evidence, it is difficult to accept
that the hand wash of the accused was contained with
phenolphthalein powder and sodium carbonate.
48. Thus, the evidence, as to the hand wash and the hand
wash was having contents of phenolphthalein powder and sodium
carbonate, is also doubtful.
49. As observed earlier that as per the evidence of
complainant PW3 Tikaram Mohkar, at the time of the first
demand, his brother accompanied him and at the time of second
demand, one Amar Daryani was along with him and said Amar
Daryani was along with him in the office of the bureau, the
evidence of Trap Officer PW5 Prakash Pawar contradicts the same
who stated that only complainant approached his office. He
specifically stated that it did not happen that in his presence
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somebody has given amount of Rs.3000/- to the complainant and,
thereafter, he has produced the same to use in the trap.
Thus, the evidence of the complainant and the
investigating officer is also not consistent.
50. Before laying the trap, the Investigating Officer has not
verified genuineness of allegations. His cross examination shows
that he did not enquire about rules for advancing loan in case one
of family members had already taken benefit of the Scheme. He
did not enquire about rules in case family members who had
already taken loan have to surrender the loan if from the same
family other members want to borrow loan and to take advantage
of the Scheme.
Thus, the enquiry was not conducted by the trap officer to
verify whether allegations are truthful or not.
51. Thus, the entire evidence of complainant PW3 Tikaram
Mohkar and Shadow Pancha PW2 Umakant Shende and Trap
Officer PW5 Prakash Pawar is inconsistent with each other. The
tainted amount was found on the table. The evidence of
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witnesses shows that in the meantime, the accused had been to
the wash room. Thus, in absence of the accused, keeping the
amount beneath of the register on the table by the complainant
cannot be ruled out. The entire evidence on record shows that
the initial demand is not corroborated by any independent
witnesses. The brother of the complainant was present at the time
of initial demand who is not examined. At the time of the second
demand, independent witness Amar Daryani was present and as
per the evidence of the complainant, he was also present in the
office of the bureau, who is also not examined. The evidence as
to the demand is inconsistent as there is no corroboration by the
Shadow Pancha to the evidence of the complainant. When a trap
is set for proving the charge of corruption against a public servant,
evidence about prior demand has its own importance. the reason
being that the complainant is also considered to be an interested
witness or a witness who is very much interested to get his work
done from a public servant at any cost and, therefore, whenever a
public servant brings to the notice of such an interested witness
certain official difficulties, the person interested in work may do
something to tempt the public servant to bye-pass the rules by
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promising him some benefit. Since the proof of demand is sine
qua non for convicting an accused, in such cases the prosecution
has to prove charges against accused. Whereas, burden on
accused is only to show probability and he is not required to prove
facts beyond reasonable doubt. A fact is said to be proved when
its existence is directly established or when upon the material
before it the Court finds its existence to be so probable that a
reasonable man would act on the supposition that it exists.
52. In the instant case, upon careful consideration of the
prosecution evidence, the evidence as to the demand and
acceptance is not established beyond reasonable doubt. The
evidence of complainant PW3 Tikaram Mohkar and Shadow
Pancha PW2 Umakant Shende is also not consistent and
corroborative. The earlier demand in presence of independent
witnesses is also not established as the said witnesses are not
examined.
53. As far as the applicability of presumption is concerned,
learned Additional Public Prosecutor for the State placed reliance
on the decision of the constitution bench of the Honourable Apex
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Court in the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi)
supra wherein it has been held that presumption of fact with
regard to the demand and acceptance or obtainment of an illegal
gratification may be made by a court of law by way of an
inference only when the foundational facts have been proved by
relevant oral and documentary evidence and not in the absence
thereof. On the basis of the material on record, the Court has the
discretion to raise a presumption of fact while considering
whether the fact of demand has been proved by the prosecution
or not. Of course, a presumption of fact is subject to rebuttal by
the accused and in the absence of rebuttal presumption stands. It
is further held that insofar as Section 7 of the Act is concerned, on
the proof of the facts in issue, Section 20 mandates the court to
raise a presumption that the illegal gratification was for the
purpose of a motive or reward as mentioned in the said Section.
The said presumption has to be raised by the court as a legal
presumption or a presumption in law.
54. In the instant case, as observed earlier, the prior demand
by the accused is not proved by the prosecution since a doubt is
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created as to the demand of the amount because independent
witnesses are not examined and there is inconsistency between
the evidence of complainant PW3 Tikaram Mohkar and Shadow
Pancha PW2 Umakant Shende and Trap Officer PW5 Prakash
Pawar. The sanction is also not valid as it was accorded without
application of mind.
55. Thus, the entire exercise carried out, as far as sanction is
concerned, is in secrecy and there is no evidence that powers are
delegated to Sanctioning Authority PW4 Ramhari Shinde to
accord the sanction. Thus, on the ground of sanction also, the
prosecution in the present case fails. As such, as the appeal
deserves to be allowed, I pass following order:
ORDER
(1) The criminal appeal is allowed.
(2) The judgment and order of conviction and sentence dated
31.7.2006 passed by learned Judge, Special Court for ACB,
Nagpur in Special Case No.3/2002 convicting and sentencing the
accused is hereby quashed and set aside.
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(3) The accused is acquitted of offences for which he was
charged.
The appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 08/08/2024 11:26:02
