Kashinath Sitaram More vs State Of Mah.Thr.Suptd.Washim
2024 Latest Caselaw 24619 Bom

Bombay High Court

Kashinath Sitaram More vs State Of Mah.Thr.Suptd.Washim on 22 August, 2024

2024:BHC-NAG:9309




              Judgment

                                                               274 apeal525.05

                                            1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.


                         CRIMINAL APPEAL NO.525 OF 2005

              Kashinath Sitaram More,
              aged 33 years, occupation : service,
              r/o Risod, district Washim.          ..... Appellant.

                                   :: V E R S U S ::

              State of Maharashtra,
              through Dy.Superintendent of Police
              Anti Corruption Bureau, Akola,
              through PSO Police Station,
              Risod, district Washim.           ..... Respondent.
              ===================================
              Shri Anil S.Mardikar, Senior Counsel assisted by Shri
              S.Kanetkar, Counsel for the Appellant.
              Shri N.B.Jawade, Additional Public Prosecutor for the State.
              ===================================

              CORAM : URMILA JOSHI-PHALKE, J.

              CLOSED ON : 06/08/2024

              PRONOUNCED ON : 22/08/2024


              JUDGMENT

1. The judgment and order dated 26.9.2005 passed by

learned Special Judge, Washim (learned Trial Judge) in Special

Case No.3/2002 is the subject-matter of challenge in the

present appeal by the appellant (the accused).

.....2/-

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2. By the judgment impugned in the appeal, the accused

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 three years

and to pay fine Rs.5000/-, in default, to undergo further simple

imprisonment for three months.

He is further convicted for offence punishable under

Section 13(1)(d) read with 13(2) of the said Act and sentenced

to undergo rigorous imprisonment for five years and to pay

fine Rs.10,000/-, in default, to undergo further simple

imprisonment for five months.

3. Learned Trial Judge directed that all sentences of the

accused shall run concurrently and set-off under Section 428

of the Code of Criminal Procedure was also given to him since

he was in jail.

4. Facts, in a nut shell, giving rise to the appeal are as

given below:

5. Dinkar Sakharam Ambhore (the Complainant), was

residing along with his parents, two brothers and sisters. One

of his sisters Smt.Shobha is widow and residing at his house.

.....3/-

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He was looking after affairs of her property received from her

husband. After demise of husband of his sister, she claimed

interest in the property of her husband, but her in-laws by

joining hands with Revenue Authorities got their names

mutated along with his sister Shobha. It was objected by her

through the Complainant by filing an application with Revenue

Authorities. The Complainant through his sister filed an

appeal, which was pending before the Tahsildar. The

Complainant was attending dates along with his sister. The

accused serving as clerk in Risod Tahsil Office was looking

after day to day affairs of cases filed before the Tahsildar. On

many occasions, the appeal filed by the Complainant was

adjourned without any reasons and the accused informed that

nothing would happen in the matter unless amount

Rs.10,000/- was paid to the Tahsildar and Rs.2000 to him. The

accused further told the Complainant that if the money is not

paid, more ten years nothing would happen in the appeal and

it would remain pending. On 15.5.2001, at about 12:00 to

12:30 pm, the Complainant met the Tahsildar and informed his

grievance in the matter of his sister. He also disclosed the

Tahsildar that the demand was made by the accused on his

name. On 18.4.2001, the Complainant went in the office of

.....4/-

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the Tahsildar. On that day, the next date was given

24.4.2001. On that day also, the accused demanded the

amount. The Complainant paid Rs.11000/- and Rs.1000/-

remained to be paid. On 31.5.2001, the Tahsildar passed the

order in the said appeal. After 31.5.2001, the Complainant

filed an application on 7.7.2001 and met the accused. The

accused demanded remaining amount Rs.1000/- and told that

unless Rs.1000/- is paid he would not place the application

before the Tahsildar. After a negotiation, it was decided that

the Complainant to pay Rs.500/- and remaining amount

Rs.500/- to be paid after the work is completed. As the

Complainant was not desiring to pay the amount, he

approached the office of the Anti Corruption Bureau at Akola

(the bureau) and lodged a report.

6. 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 trap. The Complainant produced

five currency notes of Rs.100/- denomination. A

demonstration as to use and characteristics of

phenolphthalein powder and sodium carbonate was shown.

.....5/-

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The 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 were given some instructions.

As per instructions, the Complainant was directed to hand

over the amount only on demand; pancha No.1 was directed

to remain with the Complainant, and pancha No.2 was

directed to remain with raiding party members. Accordingly, a

pre-trap panchanama was drawn.

7. After the pre-trap panchanama, the Complainant and

pancha No.1 approached the accused. During communication

between the Complainant and the accused, the accused

demanded amount. Accordingly, the Complainant handed

over tainted notes. The accused further asked the

Complainant to bring remaining amount within 4-5 days. After

giving a predetermined signal, the trap officer and other

raiding party members caught the accused. The amount was

recovered from the accused. The hand wash of the accused

so also the Complainant was collected. The investigating

officer obtained a sanction. After completion of the

investigation, chargesheet came to be filed against the

accused.

.....6/-

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8. During trial, the prosecution examined in all five

witnesses namely Dinkar Sakharam Ambhore vide Exhibit-20

(PW1), the Complainant; Munir Nijam Mujawar vide Exh.26

(PW2), the Sanctioning Authority; Dipak Dattatraya Ingle vide

Exhibit-34 (PW3), the Shadow Pancha; Kailas Vasantrao

Solanke vide Exhibit-48 (PW4), the Pancha No.2; Hafij Gulam

Nabi Shaikh vide Exhibit-56 (PW5), the Trap Officer.

9. The accused has also examined two witnesses in

support of his defence namely Prakash Santoshrao Navghare

vide Exhibit-98 (DW1) and Wasudeo Shankar Pande vide

Exhibit-104 (DW2). As per the defence of the accused, the

amount was paid towards "Kisan Vikas Patra".

10. Besides the oral evidence, the prosecution placed

reliance on 7/12 extract Exhibit-21, order passed by the

Tahsildar on 31.5.2001 Exhibit-.22, complaint Exhibit-23,

Sanction Order Exhibit-27, pre-trap panchanama Exhibit-29,

seizure memo Exhibit-30, Kisan Vikas Patra in the name of the

Complainant Exhibit-33, seizure memos Exhibits-35 and 36,

letter to the Tahsildar Exhibit-37, 7/12 extract Exhibit-38,

letter to the Tahsildar Exhibit-39, seizure memo Exhibit-.40,

order sheet of Appeal No.591/2001 Exhibit-40/1, seizure

.....7/-

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memos Exhibits-41, 42 and 44, post-trap panchanama Exhibit-

46, map Exhibit-62, report Exhibit-63, First Information Report

Exhibit-64, and the Chemical Analyzer's Report Exhibit-71.

11. After considering the evidence adduced during the

trial, learned Trial Judge held the accused guilty and convicted

and sentenced him as the aforesaid.

12. Heard learned Senior Counsel Shri Anil S.Mardikar for

the accused and learned Additional Public Prosecutor Shri

N.B.Jawade for the State. I have been taken through the

entire evidence on record so also the judgment impugned in

the appeal.

13. Learned Senior Counsel for the accused submitted that

defence of the accused is that the amount was accepted

towards "Kisan Vikas Patra". The evidence on record

sufficiently shows that a target was given to the Tahsildar of

all districts to get investment from people in "Kisan Vikas

Patra". This fact is not only admitted by Complainant PW1

Dinkar but also documents collected during the investigation

and the evidence of defence witnesses sufficiently show that

in view of the said target, the amount was accepted.

.....8/-

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As to the sanction, learned Senior Counsel submitted

that the sanction was accorded without application of mind

which reveals from the entire evidence as well as from the

Sanction Order.

Thus, the admission on record given by the

Complainant, documentary evidence, and defence witnesses

sufficiently show that the amount was paid against the

investment.

As far as the allegation of the Complainant, as to the

demand, is concerned, the same is not corroborated by the

evidence either by his sister or any other evidence. The

Investigating Officer has also not verified whether allegations

are genuine or not. The proof of demand is sine qua non to

establish charges which itself is absent in this case. In view of

the same, the judgment impugned in the appeal deserves to

be quashed and set aside.

14. In support of his contentions, learned Senior Counsel

for the accused placed reliance on following decisions:

1. Neeraj Dutta vs. State (Govt.of NCT of Delhi) 1;

1 2023 SCC OnLine SC 280

.....9/-

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2. C.M.Girish Babu vs. CBI, Cochin, High Court of Kerala2, and

3. Wasudeo s/o Nathuji Ukey vs. The State of Maharashtra, thr.PSO PS Andhalgaon, tahsil Mohadi, district Bhandara 3.

15. 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.

16. In order to prove the Sanction Order, the prosecution

examined Sanctioning Authority PW2 Munir Nijam. As per his

evidence, at the relevant time, he was serving as Collector at

Ashti. He received investigation papers and, thereafter,

drafted the Sanction Order and granted the sanction. The

Sanction Order is at Exhibit-27. The cross examination of the

said witness shows that he admitted that target for Small

Saving Scheme was given to each taluka of district Washim.

The said target is to be achieved by all employees in the

taluka. The employees have pursued the target achievement

and agents are supposed to collect the amount. He further

admitted that if it was come to his notice that the accused

2 (2009)3 SCC 779 3 Criminal Appeal No.247/2005 decided by this court on 5.10.2023

.....10/-

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accepted the amount under the Scheme to achieve the target,

he would not have issued the sanction.

Thus, from the cross examination of the said witness,

an attempt was made to establish that the amount was

accepted towards the target of Small Saving Scheme.

17. Perusal of the Sanction Order reveals that Sanctioning

Authority PW2 Munir Nijam reproduced the entire prosecution

case and in second last paragraph, it is mentioned that after

carefully evaluating the evidence on record, he was satisfied

that there is an adequate evidence to prosecute the accused

and, therefore, he accorded the sanction.

18. 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.

19. The Honourable Apex in the case of Mohd.Iqbal

Ahmad vs. State of Andhra Pradesh4 has held that what

the Court has to see 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

4 1979 AIR 677

.....11/-

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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 any prosecution can

be launched against the public servant concerned.

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

case of CBI vs. Ashok Kumar Agrawal5, 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

5 2014 Cri.L.J.930

.....12/-

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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 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.

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

Karnataka vs. Ameerjan6, held that it is true that an order

of sanction should not be construed in a pedantic manner.

6 (2007)11 SCC 273

.....13/-

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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 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.

22. In the present case, the Sanction Order was challenged

on ground of non-application of mind.

23. In view of the settled principles of law, the sanctioning

authority has to apply his/her own independent mind for

generation of its satisfaction for sanction. In short, 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 is the best

person to judge as to whether public servant concerned

.....14/-

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should receive protection under the said Act by refusing to

accord sanction for his prosecution or not.

24. 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.

25. After going though the evidence of Sanctioning

Authority PW2 Munir Nijam, though he stated that after

reading, he accorded the sanction, his admission during the

cross examination shows that the target for Small Saving

Scheme was given to each taluka including Washim district

and the said target is to be achieved by all employees. He

further admitted that if it was come to his notice that the

accused accepted the amount under the Scheme, he would

not have issued the sanction. The Sanctioning Authority has

not considered Exhibit-33 which is "Kisan Vikas Patra" issued

in the name of Complainant PW1 Dinkar. Thus, enquiry by the

Sanctioning Authority to ascertain truth was not conducted.

26. Admittedly, grant of sanction is a serious exercise of

power by the competent authority. No doubt, elaborate

.....15/-

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discussion is not required, however, decision making on

relevant materials should be reflected in order.

27. After going through the evidence of Sanctioning

Authority PW2 Munir Nijam, 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 conclusion that the

sanction is to be accorded to launch prosecution against the

accused.

28. Thus, the Sanction Order accorded is without

application of mind.

29. Besides the issue of the sanction, the prosecution

claimed that the accused demanded gratification amount and

accepted the same.

30. To prove the demand and acceptance, the prosecution

mainly placed reliance on the evidence of Complainant PW1

Dinkar and Shadow Pancha No.3 Dipak Ingle.

31. A sum and substance of the evidence of Complainant

PW1 Dinkar is that his sister Shobha is widow and he was

.....16/-

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looking after affairs as to the agricultural property of said

Shobha. After the death of husband of Shobha, on behalf of

her, the Complainant filed an application to mutate her name

as regards Gat No.75. The said application was pending

before the Tahsildar, Risod for adjudication. The accused who

was serving as clerk and looking after day to day affairs of

cases filed before the Tahsildar demanded amount Rs.10,000/-

for the Tahsildar and Rs.2000/- for him. His application was

not decided and adjourned time to time and, therefore, he met

the Tahsildar also and disclosed that the accused is

demanding gratification amount. In the meantime, the

Tahsildar decided the application on 31.5.2001 in favour of his

sister. After decision of the said application, he met the

accused on 9.7.2001 along with the application for mutating

the name of his sister, but the accused demanded remaining

amount Rs.1000/- and asked him to pay Rs.500/- on 9.7.2001

and remaining amount Rs.500/- on 12.7.2001. As the

Complainant was not desiring to pay the amount, he

approached the office of the bureau and lodged the complaint.

His evidence further shows that various events took place

during the pre-trap panchanama. As far as the demand on the

day of the trap is concerned, he deposed that when he along

.....17/-

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with Shadow Pancha No.3 Dipak Ingle approached the

accused, there was communication between him and the

accused. He enquired the accused as to whether his work was

done or not. On that, the accused asked him whether he

brought money. The Complainant told that he brought

Rs.500/-. On the demand by the accused, he handed over the

said amount to the accused which was accepted by left hand

and taken in right hand and kept in pant pocket. Thereafter,

he gave a signal. The accused was caught. The hand wash of

the accused as well as the Complainant was collected. The

amount was also recovered from the accused.

32. Defence of the accused is of total denial and the

amount was accepted towards the Small Saving Scheme. It

was contended that the amount paid to him was against

"Kisan Vikas Patra". In pursuance of the defence, cross

examination of Complainant PW1 Dinkar was carried out.

During the cross examination, the Complainant specifically

admitted that amount Rs.500/- was paid by him to the

accused for purchase of "Kisan Vikas Patra". The document

"Kisan Vikas Patra" placed on record at Exhibit-33 shows the

name of the Complainant.

.....18/-

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33. On the admission of Complainant PW1 Dinkar, that he

paid the amount against purchase of "Kisan Vikas Patra", he

was cross examined, but nothing transpired during his cross

examination. He has also placed on record 7/12 extract of gat

No.75 wherein the name of his sister was entered. The order

of the Tahsildar is at Exhibit-22 dated 31.5.2001. Perusal of

the order of the Tahsildar reveals that the dispute arose

between the sister of the Complainant and her in-laws on

account of ownership of land gat No.75 and it is held by the

Tahsildar that names of wife of the deceased and mother of

the deceased are to be entered as his legal heirs in respect of

gat No.75. It is pertinent to note that the said order was

passed on 31.5.2001 itself i.e. prior to the trap.

34. To corroborate the version of Complainant PW1 Dinkar,

Shadow Pancha No.3 Dipak Ingle was also examined. The

Shadow Pancha testified as to various events took place

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

acceptance on the day of the trap, his evidence shows that he

and the Complainant approached the accused. At relevant

time, three persons were present near table of the accused. At

the relevant time, the accused had been to chamber of the

Tahsildar. After some time, he came there and the

.....19/-

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Complainant asked about his work on which the accused

demanded Rs.500/-. The accused accepted the amount by left

hand and, thereafter, kept it in a right hand and put in the

right pant pocket. After acceptance of the amount, a pre-

determined signal was given. The accused was caught. The

amount was recovered from him. The hand wash of the

Complainant and the accused was also collected.

35. Thus, as to the demand and acceptance, the evidence

of Shadow Pancha No.3 Dipak Ingle is to the extent that there

was a demand and the amount was accepted. Though the

Shadow Pancha is cross examined, nothing material came on

record as the Shadow Pancha denied that the Complainant

was asked to put his signature on "Kisan Vikas Patra" and he

did his signature on it. However, the Shadow Pancha stated

that he is unable to state as to whether the Complainant put

his signature on any paper while they were at the table of the

accused. He has also assigned a reason that as there were

people around the people, he could not say about the same.

The Shadow Pancha admitted during the cross examination

that at the relevant time, the Complainant asked about his

work and there was no any other reference about the nature

of the amount.

.....20/-

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36. As to the acceptance, undisputedly, the amount was

recovered from the accused. PW4 Kailas Solanke is Pancha

No.2 who removed the said amount from the pant pocket of

the accused.

37. Trap Officer PW5 Hafij Gulab Nabi Shaikh, is also

examined vide Exhibit-56. As far as the demand is concerned,

he is not direct witness, but as to the acceptance his evidence

is that after signal of the Complainant, he caught the accused

and the amount was recovered from him. From his cross

examination, it reveals that immediately the accused gave his

explanation, which was noted in post-trap panchanama. He

denied the contention that the accused requested him to seize

the application of signature of the Complainant which was

"Kisan Vikas Patra".

38. As regards the defence of the accused, he examined

DW1 Prakash Navarro and DW2 Wasudeo Pande.

DW1 Prakash Navghare, at the relevant time, was the

Assistant Director of Social Welfare (Small Saving) at Washim,

who testified that he had received target from the

Government for Small Saving Schem. Whenever such targets

.....21/-

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are received, he has not submitted proposal before the

Collector for implementation of the target. The Tahsildar has

responsibility to complete the quota. Similarly, Risod Tahsildar

was also allotted with the said target and communication was

also made to that effect. The Tahsildar has to achieve the

target with the help of his staff members. So also, there were

private agents for collection of Small Saving Amount. He

admitted during the cross examination that in document

Exhibit-100, it is not mentioned that the Tahsildar has to

satisfy the target through his staff members. There was no

written order that the Head of the Department shall comply

the target through their subordinate staff. Exhibit-101, is the

list of allotment of the target to the Head of the Department

wherein name of the Tahsildar, Risod is mentioned.

DW2 Wasudeo Pande, is agent appointed for the Small

Saving Scheme. The defence witness also testified that he

was deputed as an agent for the Small Saving Scheme. It

came in his evidence that the accused used to receive the

amount for him from customers and he was obtaining

signatures on such forms. In evening, the accused used to

hand over the amount to him along with forms. He was

maintaining register of such bonds. He has also submitted

.....22/-

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extract of register Exhibit-105 wherein the name of the

accused is mentioned.

39. Thus, to substantiate the defence, the accused placed

reliance on the evidence of defence witnesses DW1 Prakash

Navghare and DW2 Wasudeo Pande as well as on the cross

examination of Complainant PW1 Dinkar and Shadow Pancha

No.3 Dipak Ingle.

40. From the cross examination of Complainant PW1 Dinkar

and Shadow Pancha No.3 Dipak Ingle, it reveals that the

Complainant specifically admitted that he paid the amount

against the "Kisan Vikas Patra". The cross examination of the

Shadow Pancha also shows that except the communication as

regards the work, there was no other communication between

Complainant and the accused. Exhibit-33 is copy of the "Kisan

Vikas Patra" wherein name of the Complainant is mentioned.

Thus, not only the defence of the accused but also the

document on record shows that "Kisan Vikas Patra" was issued

in the name of the Complainant. Perusal of the evidence of

the Complainant reveals that he and his sister Shobha

attended the office of the Tahsildar on several occasions.

Thus, the alleged demand was made in presence of said

.....23/-

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Shobha. Admittedly, said Shobha is not examined by the

prosecution. The evidence of the Shadow Pancha shows that

at the relevant time on the day of the trap 2-3 persons were

present around the table of the accused. None of them was

examined by the prosecution to substantiate that the accused

demanded the amount and accepted the same. Admittedly,

the Complainant himself is in the nature of accomplice and his

story prima facie to be corroborated by the independent

evidence.

41. In the case of M.O.Shamsudhin vs. State of

Kerala7, 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.

7 (1995)3 SCC 351

.....24/-

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42. In the case of Bhiva Doulu Patil vs. State of

Maharashtra8 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."

43. 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

8 1963 Mh.L.J. (SC) 273 9 (1979)4 SCC 526

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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.

44. Thus, a fact required to be considered is that the

evidence of Complainant PW1 Dinkar will have to be

scrutinized meticulously. The testimony of such person

requires careful scrutiny.

45. Admittedly, no independent witness is examined by

the prosecution though the evidence specifically shows

presence of independent witnesses at the time of the trap. As

to the earlier demand, sister Shobha of the Complainant, who

was present, was also not examined.

46. The evidence of Complainant PW1 Dinkar and Shadow

Pancha No.3 Dipak Ingle specifically shows that there was a

communication prior to the demand and acceptance of the

money. The evidence shows that the accused demanded the

money on enquiring by the Complainant about his work. Thus,

it reveals that the accused had made enquiry that whether the

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money had been brought or not, which is not sufficient.

Insofar as the demand of the amount is concerned, the same

is washed out during the cross examination as the

Complainant admitted that the amount was accepted towards

the Small Saving Scheme. Even, if the evidence is considered

that there was enquiry by the accused, the same is not

sufficient to constitute the demand.

47. In the case of Mukhtiar Singh (since deceased)

through his LR vs. State of Punjab 10, 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.

48. Thus, as far as the demand and acceptance is

concerned, the evidence adduced by the prosecution,

especially of Complainant PW1 Dinkar as to the previous

demand, falls short as the same is not corroborated by any

10 2017 SCC ONLine SC 742

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evidence. Moreover, Trap Officer PW5 Hafij Gulab Nabi Shaikh

has also not verified as to genuineness of the demand. The

demand on the day of the trap is falsified in the light of the

admission given by Complainant and Shadow Pancha No.3

Dipak Ingle who has stated that except communication,

regarding the work, there was no any other reference during

the communication.

49. Thus, the entire evidence of Complainant PW1 Dinkar

and Shadow Pancha No.3 Dipak Ingle falls short to prove the

demand and acceptance.

50. It is well settled that demand can be proved by direct

as well as circumstantial evidence.

51. The Honourable Apex Court in the case of Neeraj

Dutta supra held that fact in issue namely proof of demand

and acceptance of illegal gratification can also be proved by

circumstantial evidence in absence of direct, oral, and

documentary evidence.

52. In the present case, the prosecution relied upon

circumstantial evidence i.e. Chemical Analyzer's Report, which

shows test of phenolphthalein powder and sodium carbonate

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solution as positive, but as already observed earlier, from the

evidence adduced it reveals that the amount was accepted by

the accused towards the Small Saving Scheme.

53. It is well settled that to attract presumption, the

prosecution has to prove foundational facts. Insofar as

applicability of presumption is concerned, the Constitution

Bench of the Honourable Apex Court in the case of Neeraj

Dutta vs. State (Govt.of NCT of Delhi) supra 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

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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 neither proved by the prosecution

nor the demand on the day of the trap is proved. The defence

of the accused is not only substantiated by him by examining

defence witnesses but also it is substantiated by documents

as well as the cross examination of Complainant PW1 Dinkar

who specifically admitted that the amount was paid towards

Small Saving Scheme. Moreover, Exhibit-33, the "Kisan Vikas

Patra" also substantiates the same.

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

to prove the offence against the accused.

56. After going through the evidence adduced, it reveals

that a doubt is created as far as the demand is concerned. The

prosecution has not examined independent witnesses though

they were available. Thus, the prosecution case, as far as the

demand by the accused is concerned, fails. The sanction is

also not valid as it was accorded without application of mind.

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Thus, on the ground of sanction also, the prosecution case

fails.

57. In the light of the above, since I find that the appeal

deserves to be allowed, following order is passed:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 26.9.2005 passed by

learned Special Judge, Washim in Special Case No.3/2002

convicting and sentencing the accused is hereby quashed and

set aside.

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

charged and convicted.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 22/08/2024 11:05:33