Damodar S/O Uttamrao Warge vs State Of Mah. Thru Dy. Suptd. Of Police ...
2024 Latest Caselaw 23537 Bom

Bombay High Court

Damodar S/O Uttamrao Warge vs State Of Mah. Thru Dy. Suptd. Of Police ... on 12 August, 2024

2024:BHC-NAG:8857




              Judgment

                                                                  267 apeal691.06

                                              1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.
                             CRIMINAL APPEAL NO.691 OF 2006

              Damodar s/o Uttamrao Warge, aged 56years,
              occupation : service, MSEB Fuse Call Centre
              No.-8, Kaulkhed, Akola, r/o Mhaispur, taluka
              and district Akola.                       ..... Appellant.

                                      :: V E R S U S ::

              State of Maharashtra, through Deputy
              Superintendent of Police (ACB) Akola.        ..... Respondent.
              ==================================
              Shri A.M.Ghare, Counsel for the Appellant.
              Shri A.G.Mate, Additional Public Prosecutor for the State.
              ==================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 29/07/2024
              PRONOUNCED ON : 12/08/2024

              JUDGMENT

1. By this appeal, the appellant (the accused) has

challenged judgment and order of conviction and sentence dated

29.11.2006 passed by learned Special Judge, Akola (learned

Judge of the trial court) in Special Case No.2/1999 whereby he is

convicted for offence punishable under 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

.....2/-

Judgment

267 apeal691.06

Rs.1000/-, in default, to undergo simple imprisonment for six

months.

He is also convicted for offence punishable under Section

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 simple imprisonment for six months.

2. Facts of the prosecution case may be summarized, as

under:

At the relevant time, the accused was serving as Helper in

the office of the Maharashtra State Electricity Board (Now the

Maharashtra State Electricity Distribution Company) and was

posted at Fuse Call Centre No.8, Kaulkhed, Akola. Samadhan

Shivram Tayde (the complainant), resident of Malkapur,

constructed a new house, within limits of Malkapur Gram

Panchayat, at plot No.22, survey No.74/3. He applied for new

electricity connection on 9.6.1998. On 24.7.1998, he visited the

office of the MSEB to enquire about electricity connection to

which he applied and he met Sub Engineer Shri Sable. He was

.....3/-

Judgment

267 apeal691.06

informed by said Sable that the electricity connection was

sanctioned and he has to deposit Rs.600/- for new meter as per

the demand note. Accordingly, he deposited the amount on

7.8.1998 and furnished receipt thereof to the office of Sub

Engineer Shri Sable. After depositing of the amount also, the

meter was not installed and, therefore, he approached the office

of Sub Engineer Shri Sable, i.e. Fuse Call Centre No.8. In the said

office, he met the accused and enquired about his work. The

accused told him that for installation for new meter, he has to pay

Rs.500/- and unless and until the amount is paid, the meter

would not be installed. The complainant requested for reducing

the amount, but the accused was not ready for the same and

asked the complainant to come along with the amount on

25.9.1998. As the complainant was not desirous to pay the

amount, he approached the office of the Anti Corruption Bureau

at Akola (the bureau) and lodged report on 24.9.1998.

3. After receipt of the report, officer of the bureau called two

panchas. In presence of panchas, the complainant narrated the

incident, which was verified by panchas. After following a due

.....4/-

Judgment

267 apeal691.06

procedure, it was decided to lay a trap. The complainant

produced five currencies of Rs.100/- denomination. The

demonstration as to use and characteristics of phenolphthalein

powder and sodium carbonate was shown. The said solution was

applied on the tainted notes and the same were kept in a front

pocket of shirt of the complainant. The complainant was

instructed to hand over the amount only on demand and pancha

No.1 was also instructed to remain along with the complainant.

Whereas, pancha No.2 was instructed to stay along with the

raiding party members. Accordingly, pre-trap panchanama was

drawn. After the pre-trap panchanama, the complainant and

pancha No.1 proceeded towards the office of the accused and

other raiding party members followed them. At the relevant time,

the accused was coming out of the office and enquired with the

complainant and, thereafter, the accused informed the

complainant that he would install the meter first and then the

complainant should pay the amount. Thereafter, the accused

along with labour Gawhane proceeded at the house of the

complainant. The complainant also went his house along with

pancha No.1. After installation of the meter, the accused

.....5/-

Judgment

267 apeal691.06

demanded the amount which was handed over by the

complainant and, thereafter, the complainant gave a

predetermined signal and the accused was caught by the raiding

party members. The amount was seized from the accused. The

hand wash of the accused was also collected. Accordingly, post-

trap panchanama was drawn. The investigating officer obtained a

sanction. After completion of investigation, chargesheet was filed

against the accused.

4. During trial, the prosecution examined in all four

witnesses namely Samadhan Shivram Tayde vide Exhibit-34

(PW1), the complainant; Sunil Shankarrao Ukande vide Exhibit-

44 (PW2), the Sanctioning Authority; Hiralal Kisanrao Kurai vide

Exhibit-50 (PW3), the Shadow Pancha, and Subhash Mahadeorao

Dhok vide Exhibit-59 (PW4), the Trap Officer.

5. Besides the oral evidence, the prosecution placed reliance

on Sale Deed Exhibit-35; Consent Deed Exhibit-36, application by

the complainant for electricity meter Exhibit-37, complaint

Exhibit-38, Demand Note Exhibit-39, seizure memo Exhibit-40,

Sanction Order Exhibit-47, duty chart Exhibit-49, pre-trap

.....6/-

Judgment

267 apeal691.06

panchanama Exhibit-51, seizure memos Exhibits-52 to 55, post-

trap panchanama Exhibit-56, seizure memo Exhibit-57, map

Exhibit-62, report Exhibit-63, letter to Chemical Analyzer

Exhibit-.65 and Chemical Analyzer's Report Exhibit-68.

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 A.M.Ghare for the accused

and learned Additional Public Prosecutor Shri A.G.Mate for the

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 entire

case of the prosecution is rested on the evidence of complainant

PW1 Samadhan Tayde and Shadow Pancha PW3 Hiralal Kurai on

the demand and acceptance. The evidence of these two witnesses

is not consistent and corroborative to each other. The evidence

adduced shows that the accused was accompanied at the time of

trap by labour Gawhane, who is not examined by the prosecution.

.....7/-

Judgment

267 apeal691.06

Thus, as far as the demand on the day of the trap is concerned,

the same is not corroborated. The evidence of the complainant

shows that without any demand, he handed over the amount to

the accused. Mere recovery of the amount from the accused is not

sufficient unless the demand is proved. The evidence of the

Shadow Pancha, as to the demand of gratification amount, is not

consistent with the evidence of the complainant. PW4 Trap

Officer Subhash Dhok has not verified genuineness of allegations

and not made any enquiry to that effect. The sanction accorded

by Sanctioning Authority PW2 Sunil Ukande is also not as per the

law and without application of mind. Thus, the judgment

impugned, on the basis of the inconsistent evidence, deserves to

be quashed and set aside.

9. Per contra, learned Additional Public Prosecutor for the

State submitted that the sanction is accorded after application of

mind, which is reflected from the evidence of complainant PW1

Samadhan Tayde and Sanctioning Authority PW2 Sunil Ukande.

The Sanction Order sufficiently shows that after application of

mind the same was accorded. The demand and acceptance is also

.....8/-

Judgment

267 apeal691.06

proved by the prosecution on the basis of the evidence of

complainant PW1 Samadhan Tayde and Shadow Pancha PW3

Hiralal Kurai. The presumption is not rebutted by the accused. In

view of that, the appeal is devoid of merits and liable to be

dismissed.

10. Since question of validity of the sanction has been raised

by learned counsel for the accused and the same was challenged

on ground of non-application of mind, the evidence of

Sanctioning Authority PW2 Sunil Ukande is material. As per his

evidence, he was posted as Executive Engineer, MSEB for Urban

Division. The persons to be appointed on nominal Muster Roll

were appointed by the Executive Engineer. In the year 1981, the

accused was appointed as Helper and was under supervision and

was posted at Fuse Call Centre No.8. He received investigation

papers from the office of the bureau. He studied those papers and

came to conclusion that sanction is to be accorded. Accordingly,

he accorded the sanction

The cross examination of the said witness shows that he

perused statement of Sub Engineer Shri Sable posted at the Fuse

.....9/-

Judgment

267 apeal691.06

Call Centre No.8. Said Sable was Incharge to assign duties of all

workers. He further admitted that said Shri Sable received

necessary fixtures of new meters on 23.9.1998 at 11:00 am and

complainant PW1 Samadhan Tayde had been to the office at the

same time. All workers at the centre had gone to attend duties

and, therefore, he informed the complainant that the meter would

be installed on 24.9.1998. He further admitted that as per Duty

Register, on 23.9.1998, the accused was assigned duty to see

maintenance of Street Lights and attend calls. He further

admitted that from the statement of said Shri Sable, it reveals that

fixtures and meters were given to the accused for installation

along with card on 24.9.1998.

Thus, from the cross examination of the said witness it

was brought on record that the accused was given a duty of

installing the meter on 24.9.1998 and, therefore, question of

demanding of the amount on 23.9.1998 does not arise.

11. Perusal of the Sanction Order shows that Sanctioning

Authority PW2 Sunil Ukande reproduced the entire prosecution

story and in second last paragraph, it was observed that upon

.....10/-

Judgment

267 apeal691.06

carefully reading papers of investigation and after carefully

evaluating the evidence on record, he satisfied that there is an

adequate evidence to prosecute the accused and accorded the

sanction.

12. 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.

13. The Honourable Apex in the case of Mohd.Iqbal Ahmad

vs. State of Andhra Pradesh1 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

affords protection to government servants against frivolous

prosecutions and must therefore be strictly complied with before

1 1979 AIR 677

.....11/-

Judgment

267 apeal691.06

any prosecution can be launched against the public servant

concerned.

14. The Honourable Apex Court, in another decision, in the

case of CBI vs. Ashok Kumar Agrawal2, 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

has to do complete and conscious scrutiny of the whole record so

produced by the prosecution independently applying its mind and 2 2014 Cri.L.J.930

.....12/-

Judgment

267 apeal691.06

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.

15. The Honourable Apex Court, in the case of State of

Karnataka vs. Ameerjan3, 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,

the sanctioning authority is the best person to judge as to whether

the public servant concerned should receive the protection under 3 (2007)11 SCC 273

.....13/-

Judgment

267 apeal691.06

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.

16. 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 Maharashtra4.

17. Here, in the present case, the Sanction Order was

challenged on ground that it was accorded without application of

mind.

18. In view of the settled principles of law, it is crystal clear

that the sanctioning authority has to apply his/her 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 be borne in mind. In fact, the sanctioning authority

4 2021 SCC OnLine Bom 237

.....14/-

Judgment

267 apeal691.06

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.

19. 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.

20. After going trough the evidence of Sanctioning Authority

PW2 Sunil Ukande, it transpires that though he stated that after

reading and evaluating the evidence adduced, he accorded the

sanction, his cross examination itself shows that from the

statement of Sub Engineer Shri Sable it revealed to him that on

23.9.1998, when complainant PW1 Samadhan Tayde approached

the office, all workers at the Fuse Call Centre had gone to attend

duties and, therefore, he was informed that the meter would be

installed on 24.9.1998. It further came in his evidence that from

Duty Register, it revealed that on 23.9.1998 the accused was

assigned duty to see maintenance of Street Lights and attend calls.

This admission is itself sufficient to show that on 23.9.1998, at

.....15/-

Judgment

267 apeal691.06

11:00, when the complainant had been to the office of the

accused, the accused was not present in the office. The cross

examination of the Sanctioning Authority further shows that from

the statement of Sub Engineer Shri Sable, it reveals that fixtures

and meters were given to the accused for installation along with

card on 24.9.1998. Thus, the said admission by the Sanctioning

Authority is sufficient to show that on 24.9.12998, first time, the

accused came to know that he has to visit the house of the

complainant and install the meter and, therefore, the evidence as

to the previous demand by the accused appears to be a doubtful.

Thus, the vital aspect is not considered by the Sanctioning

Authority while according the sanction.

21. Admittedly, grant of sanction is a serious exercise of power

by the competent authority. It has to be apprised of all relevant

materials and on such materials, authority has to take a conscious

decision as to whether facts would show commission of offence

under relevant provisions. No doubt, elaborate discussion is not

required, however, decision making on relevant materials should

be reflected in order.

.....16/-

Judgment

267 apeal691.06

22. Thus, after going through the evidence of Sanctioning

Authority PW2 Sunil Ukande, admittedly, the Sanction Order

nowhere reflects that who has applied mind and on the basis of

which documents, he came to conclusion that the sanction is to be

accorded to launch prosecution against the accused. Thus, the

sanction accorded by the Sanctioning Authority is by ignoring the

material evidence and without application of mind.

23. Besides the issue of the sanction, the prosecution claimed

that the accused demanded gratification amount and accepted the

same.

24. To prove the demand and acceptance, the prosecution

mainly placed reliance on the evidence of complainant PW1

Samadhan Tayde and Shadow Pancha PW3 Hiralal Kurai.

25. As per the evidence of complainant PW1 Samadhan Tayde,

he applied for the electricity connection as he constructed a new

house. The application filed by him is at Exhibit-37 and Sale

Deed is at Exhibit-35 and Consent Deed is at Exhibit-36. His

evidence further shows that he deposited amount Rs.600/- as per

.....17/-

Judgment

267 apeal691.06

the demand note and he was informed that meter would be

installed at his house. As the meter was not installed, after

depositing the amount, he approached the office of MSEB

whereat, allegedly, the accused demanded amount Rs.500/-. As

per his evidence, the demand was made on 23.9.1998 and as he

was not ready to pay the amount, he approached the office of the

bureau and lodged the complaint. As to the demand on the day

of the trap, his evidence discloses that initially, he along with

pancha No.1 went to the office of the accused and then the

accused asked him whether the amount was brought. He

enquired as to whether the amount was to be paid, but the

accused stated to pay the amount after installation of the meter.

Accordingly, the accused installed the meter at his house. After

completion of the work, the accused informed that he has

completed the work and the complainant enquired as to whether

the amount was to be paid and, thereafter, the complainant paid

the amount. The accused accepted the amount with his right

hand and kept the same in left side of shirt pocket. Thereafter, he

gave a signal to the raiding party members and the trap officer

caught the accused and amount was recovered from him. The

.....18/-

Judgment

267 apeal691.06

hand wash of the complainant was also collected and the post-

trap panchanama was drawn.

26. The cross examination of complainant PW1 Samadhan

Tayde shows that he was compelled to visit the office of the MSEB

repeatedly. The Engineer was only assuring him that the meter

would be installed. Many a time he could not meet the Engineer

and, therefore, he believed that persons from the MSEB were

unnecessarily harassing him. His evidence further shows that on

23.9.1998, he met the Engineer, but he did not complain as to the

accused demanded the amount from him. He further admitted

presence of one person along with the accused. He further

admitted that the accused stated, he would first install the meter

and then would accept the amount. The cross examination

further shows that the demand note was given to him on

24.7.1998. He deposited the amount on 7.8.1999. He was asked

by the official of the MSEB to bring test report from authorized

contractor.

27. Thus, the evidence of complainant PW1 Samadhan Tayde

shows that he was fed up as he was repeatedly asked to visit the

.....19/-

Judgment

267 apeal691.06

office of the MSEB and he first time met the accused on 23.9.1998

whereat the demand was made to him.

28. To corroborate the version of complainant PW1 Samadhan

Tayde, the prosecution examined Shadow Pancha PW3 Hiralal

Kurai, who testified about facts and various events took place

during the pre-trap panchanama. As to the demand and

acceptance, his evidence is that he along with the complainant

approached the accused in the office. Thereafter, he was

introduced with the accused by informing that he is Mr.Warge.

The accused then stated the complainant that they have to visit

the house of the complainant. The shadow pancha further stated

that the accused asked the complainant as to whether all

arrangements were made and on that, the complainant disclosed

that he brought the amount of Rs.500/- as asked by the accused.

Thereafter, the accused proceeded on his bicycle and they

followed him. After reaching the house, the complainant asked

the accused as to whether the amount is to be paid, but the

accused informed that he would install the meter first. After

completion of the work of installation, the accused obtained

.....20/-

Judgment

267 apeal691.06

signature of the complainant on one paper and, thereafter, asked

the complainant to do his work as he has completed the work and,

thereafter, the complainant handed over the amount, which was

accepted by the accused. The complainant gave a signal and the

accused was caught and the amount was recovered.

29. The cross examination of Shadow Pancha PW3 Hiralal

Kurai shows that till completion of the work of the meter, helper

was with the accused. He further admitted that since the time of

arrival of the raiding party, the helper was present in the room. He

further admitted that signatures of the complainant were obtained

on the papers regarding commencement of electricity supply. The

Helper, who was with the accused, was private person.

30. Thus, the cross of Shadow Pancha PW3 Hiralal Kurai

shows that the Helper, who was private person, was continuously

with the accused till the accused was caught by the trap officer.

Admittedly, the said Helper was not examined by the prosecution,

to corroborate the version of complainant PW1 Samadhan Tayde,

though he was continuously present with the accused, till the

accused was caught.

.....21/-

Judgment

267 apeal691.06

31. As far as the demand is concerned, the evidence of Trap

Officer PW4 Subhash Dhok is not helpful. As to the acceptance,

his evidence is that he recovered the amount from the accused

and also collected his hand wash. His cross examination shows

that he recorded statement of Sub Engineer Shri Sable. He did

not enquire regarding Fuse Call Register from Sub Engineer Shri

Sable. He also recorded statements of Gawhane who was along

with the accused. Thus, his cross examination also shows that the

accused was accompanied by said Gawhane.

32. Thus, the evidence of complainant PW1 Samadhan Tayde,

Shadow Pancha PW3 Hiralal Kurai, and Trap Officer PW4

Subhash Dhok consistently shows that the accused was

accompanied by the said helper. The prosecution has also not

examined Sub Engineer Shri Sable, whose statement was

recorded during the investigation. The evidence of the

complainant, shadow pancha, and the trap officer requires to be

appreciated in the light of cross of Sanctioning Authority PW2

Sunil Ukande. The cross of the Sanctioning Authority shows that

on 23.9.1998, the accused was on duty from 8:00 pm to 4:00 pm

.....22/-

Judgment

267 apeal691.06

and the work assigned to him was attending the calls. Thus, his

cross examination is sufficient to show that 23.9.1998 the

accused was not in the office. The cross examination further

shows that till 24.9.1998, fixtures and meter were not available

for installation in the office and first time on 24.9.1998 the

accused was asked to fix the meter at the house of the

complainant. If this evidence is accepted, the evidence as to the

demand creates a doubt as till 23.9.1998, the accused was not

assigned duty to install the meter at the house of the complainant.

Moreover, cross examination shows that on 23.9.1998, when,

allegedly, the complainant visited the office of the accused, the

accused was not present in the office. The cross examination of

the complainant also shows that on 23.9.1998 he has not made

any complaint as to the demand to the Sub Engineer. The

admission of the complainant, that he was compelled to visit the

office repeatedly and he believed that he was harassed by officials

of the MSEB, speaks for itself.

33. As observed earlier, the evidence as to the previous

demand on 23.9.1998 appears to be doubtful. As far as the

.....23/-

Judgment

267 apeal691.06

demand on the day of the trap is concerned, the evidence shows

that the accused was accompanied by Helper Gawhane

throughout who is not examined by the prosecution.

34. It is settled law that evidence of complainant should be

corroborated in material particulars.

35. In the case of Panalal Damodar Rathi vs. State of

Maharashtra5, 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

5 (1979)4 SCC 526

.....24/-

Judgment

267 apeal691.06

money, whether this part of the evidence of the complainant has

been corroborated.

36. While deciding the issue involving the offence under the

said Act, a fact required to be considered is that the evidence of

complainant PW1 Samadhan Tayde will have to be scrutinized

meticulously. The testimony of such person requires careful

scrutiny.

37. In the case of M.O.Shamsudhin vs. State of Kerala6, 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.

6 (1995)3 SCC 351

.....25/-

Judgment

267 apeal691.06

38. In the case of Bhiva Doulu Patil vs. State of Maharashtra 7

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 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."

39. 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.

40. In the case of Mukhtiar Singh (since deceased) through his

LR vs. State of Punjab8, 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

7 1963 Mh.L.J. (SC) 273 8 2017 SCC ONLine SC 742

.....26/-

Judgment

267 apeal691.06

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.

41. As to the demand, the evidence of complainant PW1

Samadhan Tayde and Shadow Pancha PW3 Hiralal Kurai is not

consistent. From the evidence of the complainant, it reveals that

when he met the accused, the accused asked whether the amount

is brought and he answered in affirmative. Whereas, the evidence

of the Shadow Pancha shows that the accused asked the

complainant whether all arrangements are made and the

complainant informed him that he came along with amount

Rs.500/- The cross examinations of the complainant and the

Shadow Pancha shows that it was the complainant who offered

him money before installation of the meter, but the accused has

not accepted the same. The evidence, regarding the demand after

installation of the meter, is also doubtful as it shows that the

accused prepared documents and obtained signatures and,

thereafter, the complainant handed over the amount to the

accused. Thus, the evidence on record sufficiently shows that

.....27/-

Judgment

267 apeal691.06

though the accused has not demanded the amount, it was the

complainant who informed the accused that he has brought the

amount and offered the same to the accused.

42. As observed earlier, there is no evidence as far as the

initial demand is concerned. As to the demand on the day of the

trap, it is not corroborated by independent witness Gawhane,

present with the accused throughout, who is not examined by the

prosecution.

43. Thus, before applying the presumption, the prosecution

has to prove foundational facts.

44. In the light of the evidence of Sanctioning Authority PW2

Sunil Ukande, the evidence as to the previous demand creates a

doubt.

45. As far as the demand on the day of the trap is concerned,

the same is also not consistent and is not corroborated by the

evidence of Helper Gawhane, who was present with the accused.

The prosecution has not explained a reason behind non-

examination of said Helper Gawhane.

.....28/-

Judgment

267 apeal691.06

46. In view of the judgment of the Honourable Apex Court, in

the case of Panalal Damodar Rathi vs. State of Maharashtra supra,

earlier demand on the day of the trap in presence of independent

witness is not proved by examining the said independent witness.

47. 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

Court in the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi)9

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 9 2023 SCC OnLine SC 280

.....29/-

Judgment

267 apeal691.06

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.

48. 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. As to the

demand and acceptance, the evidence of complainant PW1

Samadhan Tayde and Shadow Pancha PW3 Hiralal Kurai is also

not consistent and corroborative. The earlier demand in presence

of independent witness is also not established as the said witness

is not examined. The evidence as to the prior demand, in the light

of the cross examination of Sanctioning Authority PW2 Sunil

Ukande, creates a doubt. The sanction accorded by the

Sanctioning Authority is also by ignoring the material evidence

adduced and without application of mind and, therefore, sanction

accorded is also not valid.

.....30/-

Judgment

267 apeal691.06

49. Thus, the entire exercise carried out, as far as the sanction

is concerned, is not acceptable. Thus, on the ground of sanction

also the prosecution in the present case fails.

50. It is well settled that the proof of demand is sine qua non

for proving the charge.

51. Here, in the present case, proof of demand and evidence

adduced to that effect are doubtful. The evidence as to the

demand, on the day of the trap, is also not consistent and not

corroborated by the independent witness though available.

52. It is well settled that mere possession and recovery of

currency notes from accused without proof of demand would not

establish offences under Sections 7 and 13(1)(d)(i)(ii) read with

13(2)of the said Act.

53. In this view of the matter, the appeal deserves to be

allowed, as per order below:

ORDER

(1) The criminal appeal is allowed.

.....31/-

Judgment

267 apeal691.06

(2) The judgment and order of conviction and sentence dated

29.11.2006 passed by learned Special Judge, Akola in Special

Case No.2/1999 convicting and sentencing the accused is hereby

quashed and set aside.

(3) The accused is acquitted of offences for which he was

charged.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 13/08/2024 10:18:55