Bombay High Court
Shri Shankar Babarao Mukkawar vs The State Of Mah.Thr.Acb Wardha on 19 August, 2024
2024:BHC-NAG:9151
Judgment
270 apeal537.05
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.537 OF 2005
Shri Shankar s/o Babarao Mukkawar, (dead)
aged about 61 years, occupation : at present
retired employee of Maharashtra Jivan
Pradhikaran Authority, resident of :
Wardha, taluka and district Wardha. ..... Appellant.
Through LR
Smt.Anita Shankar Mukkawar,
aged about 72 years, occupation nil,
w/o deceased Shri Shankar
Babarao Mukkawar, r/o 189,
Manoj Shanti Apartment, Cement
Road, Shivaji Nagar, Nagpur-10.
:: V E R S U S ::
The State of Maharashtra, through
Anti Corruption Bureau, Wardha,
district Wardha. ..... Respondent.
=================================
Shri A.A.Naik, Counsel and Shri D.Pathak, Advocate 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 : 19/08/2024
JUDGMENT
1. Learned Judge, Special Court, Wardha (learned Judge of
the trial court) rendered judgment dated 30.9.2005 in Special
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Case No.1/2001 whereby the appellant (the accused) is
convicted and, therefore, the said judgment is under challenge
in this appeal.
2. By the judgment impugned in the appeal, for offence
punishable under Section 7 of the Prevention of Corruption Act,
1988 (the said Act), the accused is sentenced to undergo
rigorous imprisonment for three years and to pay fine Rs.2000/-,
in default, to undergo further rigorous imprisonment for six
months.
For offence punishable under Section 13(1)(d) read with
13(2) of the said Act, he is sentenced to undergo rigorous
imprisonment for five years and to pay fine Rs.2000/-, in
default, to undergo further rigorous imprisonment for one year.
Learned Judge of the trial court directed that all
sentences shall run concurrently.
3. During the pendency of the appeal, the accused expired
and, therefore, his legal heir, i.e. wife, was brought on record to
prosecute the appeal further.
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FACTS OF THE PROSECUTION CASE
4. The accused was serving as Executive Engineer with the
Maharashtra Jivan Pradhikaran (MJP) at Wardha in the month
of March 2000. The MJP is constituted under the Maharashtra
Jivan Authority Act. The MJP runs Scheme for Supply of Water
to villages to Girad and Peth in Wardha district under the name
as "Augmentation to Girad and Peth villages Combined Water
Scheme". The tender process was implemented and in the said
tender process, a tender was allotted to M/s.Vatcons, a
partnership firm doing work as Civil Contractor registered with
the MJP. The estimated cost of the work was Rs.33,94,644/- and
period allotted for completion of the work was two years from
issuance of work order. The work of Water Supply Scheme was
to be commenced from 27.8.1997 and was to be completed on
or before 27.8.1999. Shrikant Tankhiwale (the complainant), is
one of partners of the said firm and Shri Vaidya was another
partner. The contractor used to submit bills for the work done
stage wise and the accused was looking after process of the work
as Executive Engineer. As per allegations of the complainant,
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the accused was delaying payment of bills of M/s.Vatcons on a
pretext of getting sanction from higher authorities. Though the
firm completed the work pursuant to the tender and also done
extra work as directed by the accused, it is alleged that despite
the work completed by the firm on 25.8.1999, the accused
informed the Superintendent Engineer that the firm has not
completed the work within prescribed time limit i.e. 27.8.1999
and proposed to impose fine Rs.1000/- per day w.e.f.1.8.1999.
The Superintending Engineer approved the proposal of imposing
fine Rs.1000/- per day from 1.8.1999. In fact, the contractor
had actually done the work costing of Rs.38,31,460.68 which
was much more than the tender value of Rs.33,49,644/-. The
complainant applied for review of the decision and for seeking
favourable orders, he met the accused. It is alleged that for
reducing the fine amount, the accused demanded amount
Rs.25000/- on 7.2.2000. The accused further asked the
complainant to supply G.I.Pipe of 100 mm diameter, 150 in
length, which was not covered by the agreement. As the
complainant was unable to pay such huge amount, he returned
to the home. Again, on 13.3.2000, he met the accused with a
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request to reduce the fine amount. On that day also, the
accused demanded the amount. On 16.3.2000, the complainant
obtained a proposal for reducing the fine from the office of the
Section Engineer, Hinganghat and handed over the same to the
Inward Clerk in the office of the accused at Wardha. In the
evening, he met the accused at his Chamber. At the relevant
time, the accused informed the complainant that he will
recommend for imposing nominal fine and again demanded
Rs.25,000/-. On showing inability by the complainant to pay
such amount, the accused demanded Rs.10000/- by afternoon of
18.3.2000 and balance amount Rs.15000/- to be paid after
sanctioning of pending bills. As the complainant was not
desirous to pay the amount, he approached the office of the Anti
Corruption Bureau (the bureau) and lodged a report.
5. After receipt of the report, the Additional Superintendent
of Police, Anti Corruption Bureau, Nagpur called two panchas.
The complainant narrated the incident which was verified by
panchas from the complaint. After following a due procedure,
the officers of the bureau decided to conduct a trap. The
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complainant produced 100 currency notes 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 amount and the
same was kept in right side pocket of full pant of the
complainant. The complainant and pancha No.1 approached the
office of the accused on 18.3.2000. After an initial
communication, the accused demanded the amount by raising
his eyebrows and the complainant handed over the same. The
accused accepted the amount and kept in left pocket of his full
pant. After getting a signal, the accused was caught by raiding
party members. The amount was recovered from the accused.
The hand wash of the complainant and the accused was
obtained. The solutions as to the pant pocket of the
complainant and the accused were also collected. Accordingly,
pre-trap and post-trap panchanamas are drawn. After obtaining
a sanction and completing investigation, chargesheet came to be
filed against the accused.
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6. During trial, the prosecution examined in all five
witnesses namely Shrikant Tankhiwale vide Exhibit-9 (PW1), the
complainant; Sudhakar Dhote vide Exhibit-31 (PW2), the
carrier; Vilas Sute vide Exhibit-37 (PW3), the shadow pancha;
Sanjaykumar Baviskar vide Exhibit-50 (PW4), the trap officer;
and Suresh Salvi vide Exhibit-55 (PW5), the Sanctioning
Authority.
7. The accused also examined Deepak Padegaonkar vide
Exhibit-85 (DW1) as defence witness.
8. Besides the oral evidence, the prosecution placed reliance
on letter by complainant PW1 Shrikant Tankhiwale to
Superintending Engineer Exhibit-10, letter by the complainant to
the Chief Engineer Exhibit-11, complaint Exhibit-12, personal
search of the complainant Exhibit-13, letter by the Sub
Divisional Engineer to the Executive Engineer Exhibit-15, seizure
memo Exhibit-16, letter to the firm of the complainant Exhibit-
20, letter by the complainant to the Executive Engineer Exhibit-
22, letter by accused to the complainant Exhibit-23, letter by the
complainant to the Executive Engineer Exhibit-25, letter to
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Superintending Engineer by the complainant Exhibit-27, letter
by Executive Engineer to the complainant Exhibit-30, letter to
the Chemical Analyzer Exhibit-32, the Chemical Analyzer's
Report Exhibit-35, pre-trap panchanama Exhibit-38, seizure
memo Exhibits-39 to 41, cabin search panchanamas of the
accused Exhibits-43 and 44 post-trap panchanama Exhibit-45,
map Exhibit-46, report Exhibit-52, First Information Report
Exhibit-53, sanction order Exhibit-56, seizure memo Exhibit-59,
and details of RA Bills paid to the contractor Exhibit-65.
9. 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.
10. Heard learned counsel Shri A.A.Naik 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.
SUBMISSIONS
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11. Learned counsel for the accused submitted that the
accused was serving as Executive Engineer with the MJP. The
sanction granted is not only without application of mind but also
Sanctioning Authority PW5 Suresh Salvi was not competent to
grant the sanction. As per the evidence of the Sanctioning
Authority, powers were delegated to him. However, document
showing the said delegation of powers to the said authority is
not on record. Even, Trap Officer PW4 Sanjaykumar Baviskar
admitted that he was not sure as to who is appointing authority.
Thus, the sanction is without application of mind and not by the
competent authority. In view of that, the entire prosecution
vitiates. The entire investigation is tainted investigation. From
investigation papers, it reveals that several witnesses were
present who were not examined. As per the evidence of
complainant PW1 Shrikant Tankhiwale, first demand was made
to him on 7.2.2000 and second demand was on 13.3.2000 and
third demand was on 16.3.2000. As per the evidence of the
complainant, he filed proposal for reducing fine in the office of
the accused on 16.3.2000, which was prepared by the
Hinganghat Office of the MJP. However, endorsement of the
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office of the accused on the said proposal is of 18.3.2000.
Moreover, the complainant was accompanied by his partner Shri
Vaidya on earlier dates, who is not examined in whose presence
the alleged demand was made. The allegation is that the
demand by giving a signal, i.e. raising eyebrows, is not sufficient
evidence to prove the demand. Other independent witness one
Shri Gaikwad, from whom the accused called file on the day of
the trap, is also not examined. Thus, not only the sanction but
also the demand is not proved and, therefore, mere recovery of
the amount is not sufficient to prove charges against the
accused.
12. In support of his contentions, learned counsel for the
accused placed reliance on various decisions, which would be
discussed at appropriate time of discussion in this judgment.
13. Per contra, learned Additional Public Prosecutor for the
State submitted that the demand was by gesture. Both
complainant PW1 Shrikant Tankhiwale and Shadow Pancha PW3
Vilas Sute consistently stated about the demand by the accused
by gesture. There is no evidence contrary as to the demand is
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concerned. He submitted that the sanction is also after
application of mind and the same is proved by the prosecution
by Sanctioning Authority PW5 Suresh Salvi. Learned Judge of
the trial court appreciating the evidence in its proper perspective
rightly convicted the accused. As such, the appeal is devoid of
merits and liable to be dismissed.
CONSIDERATION OF SUBMISSIONS
14. 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 Sanctioning
Authority PW5 Suresh Salvi is not competent to accord the
sanction.
15. In order to prove the Sanction Order, the prosecution
placed reliance on Sanctioning Authority PW5 Suresh Salvi, who
testified that at the relevant time, he was working as Member
Secretary of the MSP. The accused was serving as Executive
Engineer with the MSP at Wardha. Under delegated powers, he
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being Member Secretary of the Board, he was appointing and
removing authority of Executive Engineers. He had received
investigation papers and by applying his mind, he accorded the
sanction. One Shekhar Gaikwad, was with the Chief Executive
Officer in his office at the relevant time.
16. During cross examination, Sanctioning Authority PW5
Suresh Salvi admitted that as per Rules, meetings of Members of
the Board were held regularly and minutes of meetings are
recorded in Minutes Book. The appointments are made as per
Administrative Procedure and arrangements made by the Board.
The Ministers for Water Supply minister, Urban Development,
and Rural Development as well as State Ministers for Water
Supply And Urban Development are Members of the Board. This
Board also comprises of other members such as Secretaries of
some Departments as well as nominated members from the Zilla
Parishads and Municipal Corporations. His cross examination
further shows that he is not aware who is appointing authority
of the Executive Engineers. He admitted that powers were
delegated to him by written order. He does not remember as to
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whether he forwarded a copy of the said order to the office of
the bureau. He further admitted that as per covering letter
Exhibit-57, he had not sent copy of order showing powers were
delegated to him. The powers were delegated to him by the
Board by passing a Resolution. The said Resolution was also not
forwarded to the office of the bureau. Prior to giving of the
sanction, he had not submitted any report to the Board. He has
not obtained any permission from the Board. His cross
examination further shows that the Superintending Engineer is
having powers to impose the fine on recommendation of the
Executive Engineer. The final authority is the Superintending
Engineer. He further admitted that he has not prepared any
note sheet while granting the sanction. A draft sanction order
was received by him. His cross examination further shows that
he is not aware whether contractor had finished the work, but
he admitted that the time granted to the contractor to finish the
work was already over. He had not made any enquiry from his
Department as to how many bills were paid to the contractor.
He further admitted that till the date of the trap, the amount of
fine was not reduced.
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17. Thus, the cross examination of Sanctioning Authority
PW5 Suresh Salvi shows that as far as delegation of powers is
concerned, neither he had filed on record a copy of order
showing powers were delegated to him by Members of the Board
nor he filed the Resolution passed delegating powers to him.
The cross examination of the said witness further shows that a
draft sanction order was received by him. He has not made any
enquiry as to whether the work was completed by the contractor.
He has not made any enquiry as to how many bills were paid to
the complainant towards the tender and work completed by
him.
18. Perusal of the Sanction Order shows that the sanction
was accorded by MJP after verifying documents and satisfying
itself. Thus, wordings used in the Sanction Order are that it was
Pradhikaran having fully examined the material placed before it,
it is satisfied that there is a prima facie case made out against
the accused and the sanction is accorded. The Sanction Order
further shows that Sanctioning Authority PW5 Suresh Salvi has
also not stated on what basis he came to conclusion that the
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sanction has to be accorded. The Sanction Order only shows
that the Pradhikaran considered documents and accorded the
sanction. The Sanction Order nowhere discloses that powers
were delegated to him by passing a Resolution and, therefore, he
accorded the sanction. The cross examination of the said
witness shows that he has neither obtained any permission from
the Board nor he has submitted any report to the Board. If the
Resolution, which is not part of the record, would have been
produced, perhaps sufficient light would have been thrown on
the exercise undertaken for according the sanction to show that
it was Sanctioning Authority PW5 Suresh Salvi who applied his
mind.
19. Admittedly, grant of sanction is a serious exercise of
power by 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.
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20. 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.
21. The Honourable Apex Court, in the case of CBI vs. Ashok
Kumar Agrawal1, 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
1 2014 Cri.L.J.930
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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.
22. The Honourable Apex Court, in the case of State of
Karnataka vs. Ameerjan2, as relied upon by learned counsel for
the accused, 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
2 (2007)11 SCC 273
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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
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.
23. 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 Maharashtra3.
OPERATIVE CONCLUSIONS
24. After going through the evidence of Sanctioning
Authority PW5 Suresh Salvi, admittedly, the Sanction Order
nowhere reflects who has applied mind and which documents
are considered by the Sanctioning Authority and on what basis
3 2021 SCC OnLine Bom 237
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the Sanctioning Authority came to conclusion that sanction is to
be accorded to launch prosecution against the accused.
MARSHALLING OF EVIDENCE AS TO DEMAND AND
ACCEPTANCE
25. Besides the issue of the sanction, the prosecution claimed
that the accused demanded the gratification amount and
accepted the same.
26. To prove the demand and acceptance, the prosecution
mainly placed reliance on the evidence of complainant PW1
Shrikant Tankhiwale and Shadow Pancha PW3 Vilas Sute.
27. As per the evidence of complainant PW1 Shrikant
Tankhiwale , he was one of partners of M/s.Vatcons and during
the tender process, the work of the Scheme for Supply of Water
to villages to Girad and Peth in Wardha district under the name
as "Augmentation to Girad and Peth villages Combined Water
Scheme" was allotted to his firm. Another partner was Shri
Vaidya. The period of work was from 27.8.1997 to 27.8.1999.
The estimated cost of the work was Rs.33,94,644/-. He alleged
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that an incorrect proposal was sent to the Executive Engineer
that his firm would not be able to complete the work within the
prescribed period. The accused was Executive Engineer who
submitted a proposal to impose fine of Rs.1000/- per day on the
firm. The said proposal was accepted by the Superintending
Engineer on 8.9.1999 and his firm received the copy of the letter
on 20.9.1999 by which he came to know that fine Rs.1000/- per
day was levied on his firm on 1.8.1999. Immediately, his firm
issued letter informing that imposition of fine is not correct and
their pending bills should be cleard. It was further prayed that
order imposing fine be cancelled. However, despite of repeated
requests, the order imposing the fine was not cancelled and,
therefore, in December 1999, he met the Chief Engineer and also
issued letter to him on 16.12.1999. By this letter, it was
informed that the work is already completed costing
Rs.36,46,742/- and prayed for waiving of the fine amount.
Though an action was expected from the Chief Engineer, no
action was taken and, therefore, he approached the office of the
accused along with his partner Shri Vaidya and requested to
cancel the fine imposed on the firm and to make payment of
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pending bills. The accused informed them that he would reduce
or revoke the fine by calling proposal from the Sub Divisional
Engineer, Hinganghat and would sent it to the Superintending
Engineer, however the firm has to supply G.I.Pipe 150 in number
and also told that for waving the fine and for payment of
pending bills, first he has to pay Rs.25000/- to him. The
complainant informed that it is not possible for him to pay such
amount and he returned. The accused has not paid any heed
towards it. He has supplied the G.I.Pipes on 13.3.2000 and on
14.3.2000 informed the accused regarding supply of G.I.Pipes.
On 15.3.2000, again he met the accused along with his partner
Shri Vaidya as well as Sub Divisional Engineer Shri
Chandrikapure. They requested to cancel or reduce the fine.
The accused instructed Shri Chandrikapure to submit such
proposal and called them in his office on 16.3.2000. On
16.3.2000, they obtained letter from Sub Divisional Engineer
handed over it to the Inward Clerk in the office of the accused.
In the afternoon, he met the accused in his office wherein the
accuse informed him that he would send proposal for levying
nominal fine and he has to pay amount Rs.25,000/-. On
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showing inability to pay such amount, the accused asked him to
pay Rs.10,000/- on 18.3.2000 and asked to pay the balance
amount of Rs.15000/- after clearing of the pending bills.
28. The complainant further deposed as to the demand on
the day of the trap as well as various events took place during
the pre-trap panchanama. As to the demand on the day of the
trap, his evidence is that on 18.3.2000 he along with Shadow
Pancha PW3 Vilas Sute approached the accused. After reaching
the office of the accused, he wrote his name on slip and name of
the Shadow Pancha as well as Shri Vaidya and obtained visitors'
slip. They were called by the accused in the chamber. On
entering the chamber, the accused enquired about the Shadow
Pancha and the Shadow Pancha was introduced as brother of his
partner. On asking about reducing of the fine amount, the
accused called letter from his office, made endorsement on the
said letter, and demanded the amount by raising his eyebrows.
On that, he handed over the amount and the accused asked him
to keep on table. Thereafter, the accused accepted it and kept in
his left pant pocket. On getting the signal, the raiding party
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members caught the accused, seized the amount from him,
collected hand wash of the complainant so also accused. The
pant pockets of the complainant and the accused were verified
by using phenolphthalein powder and sodium carbonate.
29. To corroborate the version of complainant PW1 Shrikant
Tankhiwale, the prosecution also examined Shadow Pancha PW3
Vilas Sute who testified about the fact that he acted as a pancha
on various events took place during pre-trap and post-trap
panchanamas. As to the demand and acceptance, his evidence is
that he and the complainant approached the accused, the
complainant obtained visitors' slip, and he was introduced as
brother of the partner of the complainant. There was a talk
between the accused and the complainant. The accused called
relevant file and made endorsement on it. After the concerned
clerk was directed to prepare letter to the Superintending
Engineer as per his endorsement and the concerned clerk left the
chamber, the accused raised both his eyebrows and made
gestures looking at the complainant. On getting the said
gestures, the complainant handed over the amount to the
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accused. The accused asked the complainant to keep the
amount on table and he kept it in his pant pocket. The hand
wash of the accused as well as the complainant was obtained.
The amount was seized.
30. To test the veracity of the evidence of complainant PW1
Shrikant Tankhiwale, he was cross examined and during the
cross examination he admitted that his firm has executed many
works for the MJP. He admitted regarding various works carried
out by him. His cross examination further shows that he is
unable to recollect whether as a part of an agreement his firm
was required to start and supervise it for three months. He
further admitted that after the incident of trap also, his firm has
received letter to complete the work of the Scheme immediately.
He has also received a letter informing that the work of the
Scheme is allotted to somebody else and extra expenditure was
debited to them. Final bill is still not prepared. He further
admitted that in respect of the said Scheme, there was a meeting
between him and the Minister of the said Department. The cross
examination further shows the work of laying down pipe line at
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Girad village for distribution of water was also included in the
work order. They have to provide pipe lines on the hill of Girad
and to construct one tank at that place. As per the tender Form
B1, they were required to quote percentage of increase or
decrease estimated costs. For extra works, different bills are to
be prepared. For extra words, rates are required to be
sanctioned separately. The Sub Divisional Engineers and Junior
Engineers were supervising the work. They were required to
take measurement of the work and submit their bills. After
verifying the bills submitted by them, Sub Divisional Engineer
used to send the same to the Executive Engineer. There was an
escalation clause in the agreement. He already received bills of
ten running bills. He further admitted that imposition of fine
may be one of reasons for non clearing the last bill. The cross
examination further shows that his firm has received letter from
the Department stating in it that the work is in a slow speed. He
admitted that his firm has received letter stating in it that the
work should be done immediately as the water supply is to be
started immediately. As regards the water supply, meeting used
to be held with different officer. The Superintending Engineer
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had instructed for doing the work immediately by telegram and
letter. It was the say of the officer that his firm is not completing
the work immediately and his firm has received instructions that
if the work is not completed by August 1999, penalty would be
imposed. He further admitted that proposal for imposition of
fine is prepared by the Sub Divisional Engineer and it is
submitted to the Executive Engineer. The Superintending
Engineer is the competent authority to levy the fine or reduce
the same. He made a complaint to the Chief Engineer that the
Superintending Engineer has proposed the fine on his firm
without any reason. Simultaneously, he was requesting the
accused for reducing the fine. Because of imposition of the fine
amount, he had not received the payment of his running bill.
He further admitted that prior to February 2000, the accused
was not agreeable to give such recommendation.
31. Thus, the entire cross of complainant PW1 Shrikant
Tankhiwale shows that there was constant correspondence with
his firm to complete the work in time as the work was not
completed and, therefore, the fine was imposed on his firm.
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32. During investigation, the investigating officer has
collected the same correspondence which is on record. Exhibit-
10 is the letter given by the complainant PW1 Shrikant
Tankhiwale showing his displeasure as to imposing of the fine.
Exhibit-11 is the another letter addressed to the Chief Engineer.
The correspondence further shows that by letter dated
27.8.1997, the firm of the complainant was asked to start work
and to complete the same within twenty four months. Exhibit-
21 is the proposal by the accused to Superintending Engineer for
imposing the fine. Exhibit-22 is the letter dated 15.3.2000
requesting the Executing Engineer to reconsider the proposal of
the fine and the complainant undertook that he would provide
pipes within 2-3 days and water supply will be commissioned in
fortnight as per the instructions.
33. Thus, the recital of the letter dated 15.3.2000 shows the
work of commissioning of the water supply was not completed
by the complainant. By letter Exhibit-23, the complainant was
informed that fine is imposed on his firm. Thus, not only the
cross examination but also the correspondence shows that as the
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work of water supply and commissioning of the same was not
completed by the firm of the complainant, an action was taken
on the firm of the complainant by imposing fine.
34. Shadow Pancha PW3 Vilas Sute, is also cross examined to
test his veracity which shows that he has not made any enquiry
to ascertain as to on what date he had been to the accused. He
has not made any enquiry to satisfy himself. His cross
examination further shows that while leaving Nagpur for the
purpose of trap, a tape recorder was given for recording
conversation and instructions for its operation were also given.
Accordingly, it was used. During the proceeding, the said tape
was played to listen what were contents thereof. The
conversation recorded in the tape was not written. That tape
was not played on 20.3.2000. the cassette was not seized. He
further admitted that in his presence no demand was made.
35. Thus, the cross examination of Shadow Pancha PW3 Vilas
Sute shows that the tape recorder was used during the trap
proceeding. However, the evidence of complainant PW1
Shrikant Tankhiwale and Trap Officer PW4 Sanjaykumar
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Baviskar is silent on the same. Neither the conversation was
recorded during the trap was reproduced nor the tape was
produced.
36. The evidence of the Trap Officer PW4 Sanjaykumar
Baviskar also shows that he has not made any efforts to obtain
documentary evidence to ascertain that Sanctioning Authority
PW5 Suresh Salvi has powers to accord the sanction. He has not
made any enquiry to verify genuineness of allegations of
demand. During the investigation, it was transpired to him that
representatives of the public were holding meeting and
informing the Department to finish the work early. The Trap
Officer has not stated anything about the said tape recorder.
37. Thus, the evidence of Shadow Pancha PW3 Vilas Sute
and Trap Officer PW4 Sanjaykumar Baviskar is contradictory as
to the use of the tape recorder. Admittedly, the conversation
recorded through the tape recorder or conversation took place
between complainant PW1 Shrikant Tankhiwale and the accused
is not reproduced in the post-trap panchanama. The pancha
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witness specifically admitted that no demand was made in his
presence.
38. The defence of the accused is that, in view of the tender
agreement, the firm of complainant PW1 Shrikant Tankhiwale
had not implemented the work within the prescribed time limit.
There was a political as well as villagers pressure for completing
the said Scheme, but the firm of the complainant has not
completed the same and, therefore, he proposed the fine on the
firm of the complainant and, therefore, he is implicated falsely
in the alleged offence. Mere recovery of the money is not
sufficient to show his involvement. To support this contention,
the accused examined DW1 Deepak Padegaonkar, who was
serving as Sub Divisional Engineer in the MJP, Hinganghat who
testified that the Water Supply Scheme for villages Girad and
Peth was being executed by the Hinganghat Sub Division. The
work of this water supply commenced on 7.2.1997. M/s.Vatcons
had not implemented the work within the prescribed time limit.
Despite correspondence, on several occasions, the work was not
completed by M/s.Vatcons and, therefore, he issued
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correspondence to the Executive Engineer and the Executive
Engineer proposed the fine. Though he is cross examined by
Public Prosecutor, nothing came on record to shatter his
evidence.
39. It is well settled that proof of demand is sine qua non for
proving charges.
40. Whether the evidence adduced by complainant PW1
Shrikant Tankhiwale and Shadow Pancha PW3 Vilas Sute is
consistent and corroborative, the same is to be seen.
41. As per the evidence of complainant PW1 Shrikant
Tankhiwale, initial demand was made to him on 7.2.2000,
second demand was on 13.3.2000, and third demand was on
16.3.2000. The evidence of the complainant shows that on the
day of the trap, he obtained visitors' slip and, thereafter, he
along with Shadow Pancha PW3 Vilas Sute met the accused. It
reflects that prior to visiting the office of the accused and
meeting the accused personally, one has to obtain visitors' slip.
As far as his evidence as regards his visits on 7.2.2000 and
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13.3.2000, no visitors' slip is placed on record. As far as his visit
on 16.3.2000 is concerned, he deposed that the Sub Divisional
Engineer, as per instructions of the accused, prepared note,
which he has submitted at Inward Section of the office of the
accused on 16.3.2000 and met the accused on 16.3.2000. The
document which is at Exhibit-15 shows that it was received in
the office at Inward Section on 18.3.2000. Though the letter
mentions date 16.3.2000, endorsement of the Inward Section
shows it was received on 18.3.2000. Moreover, there is no
visitors' slip of 16.3.2000. Thus, the demand by the accused on
16.3.2000 has no corroboration by any documentary or
circumstantial evidence. As far as first two demands are
concerned, admittedly, on those days, demands were by the
accused in presence of his partner Shri Vaidya. The prosecution
has not examined said Shri Vaidya to prove prior demands.
42. It is settled law that evidence of complainant should be
corroborated in material particulars.
43. It is now well settled position of law that offences under
the said Act, relating to public servants taking bribe, require a
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demand of illegal gratification and acceptance thereof. The
proof of demand of bribe by a public servant and its acceptance
by him is sine qua non for establishing offences under the Act.
44. The Honourable Apex Court in the case of
K.Shanthamma vs. The State of Telangana4 referring the
judgment in the case of P.Satyanarayana Murthy vs. District
Inspector of Police, State of Andhra Pradesh and anr5 held that
the proof of demand of bribe by a public servant and its
acceptance by him is sine quo non for establishing the offence
under Section 7 of the said Act. The 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
offences under Sections 7 and 13 of the said Act would not
entail his conviction thereunder. The Honourable Apex Court
has reproduced paragraph No.23 of its decision in the case of
P.Satyanarayana Murthy supra, which reads thus:
"The proof of demand of illegal gratification, thus, is the
gravamen of the offence under Sections 7 and 13(1)(d)
(i) and (ii) of the Act and in absence thereof,
4 2022 LiveLaw (SC) 192
5 (2015)10 SCC 152
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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 Section 7 or 13 of the Act would not
entail his conviction."
45. In the light of the above well settled legal position, if the
evidence of the prosecution is appreciated, it would show that
the prosecution has placed reliance on the evidence of
complainant PW1 Shrikant Tankhiwale. As per his oral
evidence, the accused demanded the amount from him for
forwarding the proposal to reduce the fine amount. As already
observed, as far as demands on earlier dates i.e. 7.2.2000 and
13.3.2000 are concerned, it has no independent corroboration.
It is pertinent to note that on the day of the trap, before
approaching the accused, the complainant obtained visitors' slip
and sent it to the accused and after receiving the call from the
accused, he entered the chamber of the accused. It sufficiently
shows that procedure adopted in the office of the accused is that
prior to enter the chamber of the accused, one has to obtain
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visitors' slip, it was sent to the accused and, thereafter, person
can meet him. As far as visit of the complainant on earlier
occasions i.e. 7.2.2000 and 13.3.2000 is neither corroborated by
showing circumstance that before meeting the accused, the
complainant obtained visitors' slip. The evidence of the
complainant shows that on both dates, his partner Shri Vaidya
was along with him, who is also not examined. The evidence as
to the visit of the complainant to the office of the accused on
16.3.2000 to hand over the correspondence by the Sub
Divisional Engineer in the name of the Executive Engineer
proposing to reconsider imposition of fine is also falsified by
document Exhibit-15, which shows that though the said letter is
dated 16.3.2000, it was received in the office of the accused on
18.3.2000.
46. Thus, insofar as the prior demand is concerned, the same
is not corroborated either by direct or circumstantial evidence.
47. In the light of above facts, testimony of complainant
requires careful scrutiny.
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48. 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.
49. In the case of Bhiva Doulu Patil vs. State of Maharashtra7
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
6 (1995)3 SCC 351
7 1963 Mh.L.J. (SC) 273
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of practice, not accept the evidence of such a witness
without corroboration in material particulars."
50. 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.
51. Besides the evidence of complainant PW1 Shrikant
Tankhiwale, the evidence of Shadow Pancha PW3 Vilas Sute is
relied upon by the prosecution. The said Shadow Pancha
specifically admitted during his cross examination that the
accused has not made any demand in his presence. His evidence
further shows that as soon as they reached the office of the
accused, the accused called for correspondence, made
endorsement on it, and asked his subordinate to prepare
proposal. Thereafter, allegedly, the demand was made by
gesture. As far as the demand by gesture is concerned, the
evidence is that he raised eyebrows. The evidence of the
complainant and the Shadow Pancha shows the demand was
made by raising eyebrows.
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52. Learned counsel for the accused submitted that insofar as
the demand by gesture is concerned, there was no demand
before documents are prepared by the accused. Complainant
PW1 Shrikant Tankhiwale and Shadow Pancha PW3 Vilas Sute
both have stated that the amount was demanded through
gestures. In view of the settled legal position, conclusive and
definite demand must be proved beyond any reasonable doubt
for constituting offence under the said Act. The alleged gesture
pertinently is not described with any particularity to constitute
the demand. In support of his contentions, he placed reliance
on the decision of this court in the case of Dattatraya s/o Udaji
Warkad vs. State of Maharashtra8, wherein this court considered
aspect of demand by gestures and held that The prosecution case
has too many grey areas and doubtful facets for this court to
uphold the finding that a conclusive and definite demand is
proved beyond reasonable doubt. In absence of such a demand,
the alleged acceptance of currency note or the recovery of the
note from the accused, pales into insignificance. He further
placed reliance on the decision of this court in the case of State
8 2018 ALL MR (Cri) 1305
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of Maharashtra, through Police Station Officer, Mehkar, district
Buldhana vs. Deepak Gopalrao Dande9 wherein also this court
disbelieved the theory of demand by gestures.
53. Thus, it is well settled that demand by gestures by
expressing that without specification of exact monitory demand
towards bribe, it is difficult to accept the same as a demand of
bribe.
54. The evidence in isolation, that the accused had enquired
by raising his eyebrows, is not sufficient to prove the demand.
55. In the case of Mukhtiar Singh (since deceased) through
his LR vs. State of Punjab10, 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.
9 Criminal Appeal No.663/2008 decided on 14.9.2020
10 2017 SCC ONLine SC 742
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56. The evidence of complainant PW1 Shrikant Tankhiwale,
Shadow Pancha PW3 Vilas Sute, and Trap Officer PW4
Sanjaykumar Baviskar, as to the use of tape recorder, is also not
consistent with each other. Before laying the trap, the Trap
Officer has not verified genuineness of allegations. The cross
examination of the the Trap Officer shows that it revealed to him
during the investigation that firm of the complainant has kept
incomplete work. It further transpired to him that the accused
has proposed fine to be imposed on the complainant's firm. The
accused was not the authority who can reduce or waive the fine
amount. It further revealed to him that several communications
were made with the firm of the complainant to complete the
work. He has not made any enquiry to ascertain whether facts
narrated by the complainant demanding the money are correct
or not. Thus, the entire evidence of the complainant, shadow
pancha, and the Trap Officer creates a doubt as to the actual
occurrence of the incident.
57. As far as the applicability of presumption is concerned, in
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 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.
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58. It has been already observed that the entire evidence of
complainant PW1 Shrikant Tankhiwale, as to previous demands,
is falsified on the basis of Exhibit-15 as well as on the fact that
the independent corroboration is not there though the
independent witness, the partner of the complainant, was
present along with him, who was not examined. As far as the
demand on the day of the trap is concerned, which was allegedly
by gestures, as observed earlier, gestures without particularity
cannot constitute demand. Conclusive and definite demand
must be proved beyond any reasonable doubt. Thus, a doubt is
created as to the demand of the amount as there was no
independent corroboration. Moreover, principles for according
sanction are also not considered. Thus, the entire exercise carried
out, as far as the sanction is concerned, there is no evidence that
powers are delegated to Sanctioning Authority PW5 Suresh Salvi.
Thus, on the ground of sanction also, the prosecution in the case fails.
As such, the appeal deserves to be allowed as per order below:
ORDER
(1) The criminal appeal is allowed.
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(2) The judgment and order of conviction and sentence dated
30.9.2005 passed by learned Judge, Special Court, Wardha in Special
Case No.1/2001 convicting and sentencing the accused is hereby
quashed and set aside.
(3) The accused is acquitted of offences for which he was charged
convicted.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 19/08/2024 17:22:40
