Bombay High Court
Ramesh Tukaram Waghmare vs State Of Mah.Thr.Acb Wardha on 22 January, 2024
2024:BHC-NAG:876
Judgment 1 J.Cri.Appeal No.148.2006.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 148 OF 2006
Ramesh Tukaram Waghmare,
Aged about 43 years,
Occupation - Government Service,
R/o. Wardha.
.... APPELLANT
// VERSUS //
State of Maharashtra,
through A.C.B., Wardha.
.... RESPONDENT
_____________________________________________________________
Mr. R.M. Daga, Advocate for Appellant.
Mr. M.A. Barabde, Additional Public Prosecutor for Respondent.
_____________________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 05.01.2024.
PRONOUNCED ON : 22.01.2024.
JUDGMENT.
1. By this appeal, the appellant (accused) has challenged
the judgment and order of conviction and sentence dated 13.03.2006
passed by learned Judge, Special Court, designated under The
Prevention of Corruption Act, 1988 (learned Judge of the trial court),
Wardha in Special Case (ACB) No.5/1997. By the said judgment, the
accused is convicted for the offences punishable under Section 7,
Judgment 2 J.Cri.Appeal No.148.2006.odt
13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 (the Act of 1988) and sentenced to suffer three years
rigorous imprisonment and fine of Rs.2,000/- in default to undergo
further rigorous imprisonment for a period of six months for the
offence punishable under Section 7 of the Act of 1988 and he has
also sentenced to suffer rigorous imprisonment for the period of five
years and fine of Rs.2,000/- in default to undergo further rigorous
imprisonment for the period of one year for the offence punishable
under Section 13(1)(d) read with Section 13(2) of the Act of 1988.
2. The brief facts of the prosecution's case as emerges from
the evidences recorded before the trial Court are as under :
(i) The accused is serving as a District Social Welfare Officer,
Zilla Parishad, Wardha. He was the sanctioning authority of grant-in-
aid to the Hutatma Smarak Backward Classes Boys Hostel, Ashti. The
State Government used to provide grant-in-aid at the rate of Rs.250/-
per student to the said hostel through the District Social Welfare
Officer. There were 180 students staying in the hostel and the hostel
was getting messing grant of Rs.4.50 Lacks through the District Social
Welfare Officer. On 25.08.1995, proposal for release of messing grant
amount to Rs.4.50 Lacks was submitted by authorities of the said
hostel to the office of the accused. On 30.10.1995, complainant
Babarao Fuse, who was serving as a Superintendent of the said hostel
Judgment 3 J.Cri.Appeal No.148.2006.odt
contacted the accused and enquired about the grants whether
sanctioned or not. As per the allegations of the complainant, the
accused told that unless amount of Rs.10,000/- is paid to him, the
grants would not be sanctioned. Upon communicating with the
accused, accused accepted to receive the amount in installments and
asked the complainant Babarao Fuse to pay an amount of Rs.4,000/-
when 50% grant would be sanctioned and to pay balance amount of
Rs.6,000/- when remaining 50% of the grant would be sanctioned in
the month of March-April. The complainant was called by the
accused after seven to eight days. Thereafter, the complainant met
the accused on 08.11.1995 and he was informed that 50% grant was
sanctioned and the proposal along with the bill is sent to Cash and
Finance Officer for preparing cheque amount of Rs.2.25 Lacks. The
accused informed the complainant that the cheque will come to him
by Friday and complainant should approach him on Friday at about
03.00 to 04.00 pm. with an amount of Rs.4,000/-. As the
complainant was not willing to pay the amount to the accused, he
approached the Office of the Anti-Corruption Bureau,(ACB) Nagpur
and lodged report on 09.11.1995.
(ii) After receipt of report, office of the ACB called him on
the next day and also called two panchas, the complainant narrated
the incident, which was verified by panchas from the complaint. After
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following due procedure, it was decided to conduct a raid. The
complainant produced tainted amount 40 currency notes of Rs.100/-
denomination and the numbers of the currencies were noted. The
demonstration as to phenolphthalein powder and sodium carbonate
solution was shown, the said solution was applied on the tainted
amount and kept in the shirt pocket of the complainant. The
instructions were given to the panch No.1 Ashok Bisen to stay along
with the complainant and panch No.2 was asked to remain along
with raiding party members. The complainant was further instructed
to hand over the amount only on demand, accordingly Pre-trap
panchnama was drawn.
(iii) After the Pre-trap panchnama, the complainant along
with panchas and raiding party members reached at Wardha at about
03.00 p.m. The instructions were revised to the complainant and the
shadow panch. Thereafter, the complainant and the shadow panch
went to the office of the District Social Welfare, Zilla Parishad
Wardha, however, the accused was not present, they approached to
the concerned clerk Junghare, who informed him that cheque in
respect of grant-in-aid is received and the same can be delivered on
instructions from the accused. Then after ten minutes, the accused
came and enquired with the complainant whether he has brought the
amount therefore, the complainant has handed over the tainted notes
Judgment 5 J.Cri.Appeal No.148.2006.odt
of Rs.4,000/- to the accused, which was accepted by the accused and
kept in the right side full-pant pocket. After acceptance of the
amount, the complainant has given pre-decided signal to the raiding
party and the trap was led and the amount was recovered from the
accused. Accordingly, Post-trap panchnama was drawn. The panch
No.1 - Ashok Bisen disclosed as to the demand and the acceptance.
The office of the ACB lodged the report about the incident, seized
relevant documents and obtained sanction to prosecute the accused.
After completion of the investigation, charge-sheet is filed.
3. During the trial, the prosecution has examined in all five
witnesses namely P.W.-1 Jagannath Pandharinath Dange/Sanctioning
authority Exhibit-42, P.W.-2 Prakash Pandharinath Tidke/Naik Police
Constable Exhibit-47, P.W.-3 Babarao Raija Fuse/complainant Exhibit-
53, P.W.-4 Ashok Sadashiv Bisen/shadow panch Exhibit-69, P.W.-5
Suresh Vinayakrao Kokate/Investigating Officer Exhibit-87, the
accused has also examined defence witnesses D.W.-1 Ramkrushna
Vishweshwar Appa Ganjiwale Exhibit-98 and D.W.-2 Ramdas Vistari
Talanje Exhibit-105.
4. Besides the oral evidence, the prosecution placed reliance
on following documents, proposal to obtain sanction Exhibit-43,
sanction order Exhibit-44, letter to Superintendent of Police by
sanctioning authority Exhibit-45, requisition letter Exhibit-48, First
Judgment 6 J.Cri.Appeal No.148.2006.odt
Information Report Exhibit-49, report lodged by P.W.-5 Exhibit-50,
complaint Exhibit-54, seizure memo Exhibit-57, cheque of grant
Exhibit-58, order granting the grant Exhibit-59, seizure memo
Exhibit-60, Authority Exhibit-61, letter to Hutatma Smarak Backward
Class Boys/Girls Hostel Exhibit-64, pre-trap panchnama Exhibit-70,
seizure memos Exhibit Nos.72, 73, 74, 76, 77, 78, 79 and 80 and
post-trap panchnama Exhibit-83.
5. After considering the evidence adduced during the trial,
learned Judge of the trial Court held the accused guilty of the offence
punishable under Section 7, 13(1)(d) read with Section 13(2) of the
Act of 1988 and convicted and sentenced him as the aforesaid.
6. I have heard learned Counsel Mr. Daga for the appellant
and Mr. Barabde learned APP for the State. I have been taken
through the entire evidence so also the judgment and order of
conviction and sentence impugned in the appeal.
7. The learned Counsel for the appellant submitted that the
judgment and order of conviction impugned is erroneous and without
appropriate reasoning. The learned Judge of the trial Court failed to
appreciate inconsistencies came in the evidence and also failed to
appreciate that demand and acceptance is not proved. He further
submitted that even the sanction to prosecute the accused, as
contemplated under Section 19 of the Act of 1988, is bad in law and
Judgment 7 J.Cri.Appeal No.148.2006.odt
therefore, the conviction of the accused stood vitiated on that ground
itself. He further submitted that the cross examination of the
witnesses shows that the accused has visited the hostel on various
occasions and noted the discrepancies and action was suggested
against the authority who is running the hostel and, therefore, the
accused is falsely implicated in the alleged offence. It is further
submitted that the accused is exonerated from the departmental
enquiry, for which the evidence of lessor degree is required. Here, to
prove the charges against the accused, higher degree of proof is
required. Thus, the entire evidence on record is not sufficient to
prove the charges against the accused. Thus the entire prosecution
fails in the light of the above evidence. For all the above reasons, the
accused deserves to be acquitted.
8. In support of the contention, learned Counsel for the
appellant placed reliance on the decisions of :
(i) Ashoo Surendranath Tewari Vs. The Deputy
Superintendent of Police, EOW, CBI & Anr., reported in
(2020) 9 SCC 636,
(ii) R. J. Singh Ahluwalia Vs. The State of Delhi, reported in
AIR 1971 SC 1552,
Judgment 8 J.Cri.Appeal No.148.2006.odt
(iii) Radheshyam Kejriwal Vs. State of West Bengal and
Another, reported in (2011) 3 SCC 581, and decisions of
this Court,
(iv) Criminal appeal No. 444/2014, Prabhat Ram Ambhurkar
Vs. State of Maharashtra along with Criminal appeal
No.448/2014, Prashant Shankar Chatreshwar Vs. State of
Maharashtra, decided on 09.10.2023 and
(v) Criminal Appeal No. 247/2005, Wasudeo Nathuji Ukey
Vs. The State of Maharashtra, decided on 05.10.2023.
9. Per contra, learned Additional Public Prosecutor
Mr. Barabde for the State submitted that the evidence of the
complainant P.W.-3 Babarao Fuse is corroborated by shadow panch
P.W.-4 Ashok Bisen, who proves the demand and acceptance. The
amount recovered from the pocket of full-pant of the accused is
proved by the panch. The prosecution has also proved that the
sanction is as per the law and valid and, therefore, no interference is
called for in the judgment and order passed by the learned Judge of
the trial Court.
10. Since the question of validity of sanction has been raised
as a preliminary point, it is necessary to discuss an aspect of sanction.
The sanction order was challenged on the ground that the sanction
Judgment 9 J.Cri.Appeal No.148.2006.odt
order was accorded without application of mind and mechanically
and, therefore, it is not a valid sanction.
11. On the point of valid sanction, it is submitted that the
evidence of sanctioning authority P.W.-1 Jagannath Dange, who
accorded the sanction to prosecute accused, nowhere shows the
application of mind.
12. The evidence of sanctioning authority P.W.-1 Jagannath
Dange shows that in the year 1997, he was working as a Secretary,
Social Welfare Department, State of Maharashtra. The accused
Ramesh Tukaram Waghamre was working as a Social Welfare Officer,
Wardha. Power to appoint Social Welfare Officer are vested with the
Government. The appointment order of such officer is required to be
signed by the Secretary of that department. Under orders of
Secretary, his sub-ordinate officer can also sign the order. The
competent authority to remove the Social Welfare Officer is the State
Government. His evidence further shows that on 18.03.1996, he
received the communication from the Superintendent of Police, ACB,
Mumbai along with the papers of investigation. Draft sanction order
was also sent to him. He has personally seen those documents, it was
comprising of panchnamas, complaint, statements of witnesses,
report of the Investigating Officer and other relevant documents. He
personally read those documents and come to the conclusion that
Judgment 10 J.Cri.Appeal No.148.2006.odt
there is a prima facie case of corruption against the accused and
accorded the sanction, which is at Exhibit-44. The cross-examination
of this witness shows that the papers are sent to the Law Department
as well as Home Department. The opinion of Law Department
whether sanction is to be accorded or not was required. It further
states that the State Government had issued the guidelines in respect
of according the sanction. He further admitted that the Social Welfare
Officer of the Zilla Parishad is a Class-II Gazetted Officer and
approval of the Chief Minister or Deputy Chief Minister is required to
be taken prior to according the sanction. His cross-examination
further shows that it reveal to him that grant was provided as per the
number of students and the incharge of that hostel is required to give
periodical report of number of students. He further admitted that
Social Welfare Officer does not prepare cheque in respect of sanction
granted and work of preparation of bills lies with the Finance
Department. He specifically admitted that in the present case, bills of
grant-in-aid was approved by the accused prior to 20 days of the
incident and it was for the amount of the bill of grant-in-aid. He
further admits that sanction order Exhibit-44 is the same as per the
draft sanction order. Thus, attempt is made by the defence to show
that it was the Chief Minister or the Deputy Chief Minister through
approval was required for according sanction. The opinion of Law
Judgment 11 J.Cri.Appeal No.148.2006.odt
and Judiciary Department was also required and the papers were sent
for obtaining the said opinion, which is not on record. Moreover, the
admission specifically shows that the work for which demand is made
is already completed prior to 20 days as the grant-in-aid was already
sanctioned.
13. Perusal of the sanction order shows that in paragraph
No.1 designation of accused is mentioned and from paragraph Nos.2
to 4, it is mentioned that the Government of Maharashtra, having
fully examined the material placed before it and considered all facts
and circumstances, was satisfied that there is a prima facie case made
out against the accused and accorded the sanction.
14. Perusal of the sanction order nowhere discloses that
P.W.-1 Jagannath Dange is the person, who has applied his mind
while according the sanction. After going through the evidence of
sanctioning authority P.W.-1 Jagannath Dange, though he stated that
he applied his mind and perused the investigating papers, the
sanction order nowhere discloses that it was he, who applied his
mind by perusing the investigation papers. The wordings used in the
sanction order are that the Government of Maharashtra, having fully
examined material before it, was satisfied that there is a prima facie
case made out against the accused and the sanction is accorded.
Perusal of the sanction order shows that he has not disclosed on what
Judgment 12 J.Cri.Appeal No.148.2006.odt
basis he came to conclusion that the sanction has to be accorded.
The sanction order only shows that the Government of Maharashtra
applied its mind and accorded the sanction. It further discloses that
the papers were sent to the Law and Judiciary Department as well as
Home Ministry, however, there is no reference of these activities in
the sanction order. The sanction order discloses that the material was
examined by the Government of Maharashtra and satisfaction for
according of sanction was also arrived at by the Government of
Maharashtra. The sanction order does not specifically mention name
of any officer who had actually undertaken the exercise of examining
the material and recording subjective satisfaction in this regard on
behalf of the Government of Maharashtra. It is not known as to who
applied his/her mind and by what process exactly an opinion was
formed that a prima facie case was made out for according the
sanction. The opinion of the Law and Judiciary Department was not
produced in the evidence by the prosecution. If it would have been
produced, sufficient light perhaps could have been thrown on the
exercise undertaken for according of sanction of the accused by the
Government of Maharashtra. Admittedly, grant of sanction is a
serious exercise of powers by the competent authority. It has to be
apprised of all the relevant materials and on such materials, the
authority has to take a conscious decision as to whether the facts
Judgment 13 J.Cri.Appeal No.148.2006.odt
would show the commission of the offence under the relevant
provisions. No doubt, elaborate discussion is not required, however,
the decision making on relevant materials should be reflected in the
order. Whether sanction is valid or not and when sanction can be
called as a valid, the same is settled by the various decisions of the
Hon'ble Apex Court as well as this Court.
15. On the point of valid sanction, the settled law is to be
taken into consideration. The Hon'ble Apex in the case of Mohd.Iqbal
Ahmad vs. State of Andhra Pradesh, reported in 1979 AIR 677 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 any
prosecution can be launched against the public servant concerned.
16. The Hon'ble Apex Court, in another decision, in the case
of CBI vs. Ashok Kumar Agrawal, reported in 2014 Cri.L.J. 930 has
held that sanction lifts the bar for prosecution and, therefore, it is not
an acrimonious exercise but a solemn and sacrosanct act which
Judgment 14 J.Cri.Appeal No.148.2006.odt
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 Hon'ble 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 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
Judgment 15 J.Cri.Appeal No.148.2006.odt
sanctioning authority and the authority had applied its mind on the
same and that the sanction had been granted in accordance with law.
17. The Hon'ble Apex Court in the case of State of Karnataka
vs. Ameerjan reported in (2007)11 SCC 273, 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 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.
18. 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 Maharashtra, reported in 2021
SCC OnLine Bom 237.
19. This court in the case of Vinod Savalaram Kanadkhedkar
vs. The State of Maharashtra, reported in 2016 ALL MR (Cri) 3697
observed that absence of description of documents referred by
Judgment 16 J.Cri.Appeal No.148.2006.odt
sanctioning authority and only considering the grievances made by
Complainant would show lack of application of mind by competent
authority while according sanction. The documents other than
complaint were taken into consideration those documents should
have been referred in the sanction order. The sanction order is illegal
and invalid.
20. In view of the settled principles of law, it is crystal clear
that the sanctioning authority has to apply his own independent mind
for generation of its satisfaction for sanction. The mind of the
sanctioning authority should not be under pressure and the said
authority has to apply his own independent mind on the basis of the
evidence which came before it. 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 is the best person to judge as to whether public
servant concerned should receive protection under the Act of 1988 by
refusing to accord sanction for his prosecution or not.
21. Thus, an application of mind on the part of sanctioning
authority is imperative. The orders granting sanction must
demonstrate that he/she should have applied his/her mind while
according sanctions.
Judgment 17 J.Cri.Appeal No.148.2006.odt
22. After going through the evidence of sanctioning authority
P.W.-1 Jagannath Dange, admittedly, the sanction order nowhere
reflects who has applied mind and which documents are considered
by the sanctioning authority and what was the basis to come to
conclusion that the sanction is to be accorded to launch prosecution
against the accused.
23. Besides the issue of sanction, the prosecution claimed
that the accused person has demanded gratification amount and
accepted the same. In order to prove the demand and acceptance, the
prosecution mainly place reliance on the evidence of complainant
P.W.-3 Babarao Fuse and shadow panch P.W.-4 Ashok Bisen. The
prosecution has also adduced the evidence of P.W.-5 Suresh Kokate
who has investigated the matter.
24. It is now well settled that the offence is under the Act of
1988 relating to public servants taking bribe require a demand of
illegal gratification and the acceptance thereof. The proof of demand
of bribe by a public servant and its acceptance by him is a sine quo
non for establishing the offences under the Act of 1988.
25. The Hon'ble Apex Court in the case of K.Shanthamma vs.
The State of Telangana, reported in 2022 LiveLaw (SC) 192 referring
the judgment in the case of P.Satyanarayana Murthy vs. District
Inspector of Police, State of Andhra Pradesh and anr, reported in
Judgment 18 J.Cri.Appeal No.148.2006.odt
(2015) 10 SCC 152 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 Act of 1988. 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 Act of 1988
would not entail his conviction thereunder. The Hon'ble 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,
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."
Judgment 19 J.Cri.Appeal No.148.2006.odt
26. To prove the offence under Sections 7 and 13(1)(d) of
the Act of 1988, following are ingredients of the said Sections, which
require to be prove:
under Section 7: (1) the accused must be a public servant
or expecting to be a public servant; (2) he should accept
or obtain or agrees to accept or attempts to obtain from
any person; (3) for himself or for any other person; (4)
any gratification other than legal remuneration, and (5)
as a motive or reward for doing or forbearing to do any
official act or to show any favour or disfavour.
under Section 13(1)(d): (1) the accused must be a public
servant; (2) by corrupt or illegal means, obtains for
himself or any other person any valuable thing or
pecuniary advantage; or by abusing his position as public
servant, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or while holding
office as public servant, obtains for any person any
valuable thing or pecuniary advantage without any public
interest; (3) to make out an offence under Section 13(1)
(d), there is no requirement that the valuable thing or
pecuniary advantage should have been received as a
motive or reward; (4) an agreement to accept or an
attempt to obtain does not fall within Section 13(1)(d);
(5) mere acceptable of any valuable thing or pecuniary
advantage is not an offence under this provision; (6) to
make out an offence under this provision, there has to be
Judgment 20 J.Cri.Appeal No.148.2006.odt
actual obtainment, and (7) since the legislature has used
two different expressions namely "obtains" or "accepts",
the difference between these two have to be taken into
consideration.
27. In the light of the well settled law, if the evidence of the
prosecution is appreciated, it would show that the prosecution has
placed reliance on the evidence of complainant P.W.-3 Babarao Fuse.
As per his oral evidence, the accused who is serving as a District
Social Welfare Officer and a Sanctioning Authority to sanction the
grants. The complainant was working as a Superintendent at the
Hutatma Smarak Backward Class Boys Hostel, Ashti and the hostel is
entitled for the messing grant of Rs.250/- per student from the State
Government through the District Social Welfare officer. Thus, the
hostel was getting messing grant of Rs.4.50 Lacks for ten months. He
had submitted the proposal for release the messing grant and
therefore, he approached to the accused on 30.10.1995. His evidence
further shows that when he enquired with the accused whether the
grant is sanctioned, at the relevant time, accused has demanded the
amount of Rs.10,000/- and told him that unless the amount is paid,
he would not get the cheque of the grant. After negotiation, it was
decided that after sanction of the grant of 50%, he has to pay
Rs.4,000/- and when the remaining 50% grant will be sanctioned he
Judgment 21 J.Cri.Appeal No.148.2006.odt
has to pay Rs.6,000/-. As the complainant was not willing to pay the
amount, he approached to the ACB office and lodged the complaint.
He narrated the entire procedure laid down by the Bureau for
conducting the raid. Thus, as per his evidence, when he approached
the accused, the accused again demanded the amount and accepted
the amount. He further stated that he gave a signal as instructed by
the Officers of Bureau and the accused was caught and amount was
seized from him.
28. To corroborate his version, the prosecution has also
examined shadow panch P.W.-4 Ashok Bisen, who has also narrated
that he along with the another panch was called in the office of the
Bureau. In their presence, complainant narrated his grievance and
they have verified the same. Thereafter, it was decided to conduct
the raid and narrated the entire procedure carried out by the officials
of the Bureau during pre-trap and post-trap panchnamas. As per his
evidence, he went along with the complainant at the office of the
present accused, accused demanded the amount and the complainant
has handed over the same. Thereafter, the accused was caught and
the amount was recovered from the full-pant pocket of the accused.
Thus, evidence of P.W.-3 Babarao Fuse shows that the accused has
demanded the amount and accepted the same.
Judgment 22 J.Cri.Appeal No.148.2006.odt
29. Now, it has to be seen, whether the evidence of
complainant P.W.-3 Babarao Fuse and P.W.-4 Ashok Bisen is
corroborating to each other on every particulars.
During cross examination of the complainant P.W.-3, it
came on record that the accused used to visit the hostel and noted
down some discrepancies. He has admitted that the accused has also
taken the entry in the Visit Book. Prior to 1993, the hostel was under
the administration of Block Development Officer, thereafter, an order
was passed to the effect that Social Welfare Officer, Block
Development Officer and the Superintendent should manage the
affairs of the hostel. It further came in his cross examination that in
the year 1994, the accused requested the Joint Charity Commissioner
and accordingly, the management of the hostel was entrusted to the
Society. The discrepancies found were noted by the accused in the
Visit Book. He further admitted that the sanction strength of hostel
was reduced to 150. Attendant Register was verified by the accused
and gave his remarks on the Visit Book, while noting the
discrepancies in the hostel. The cross-examination further shows that
on 15.09.1995, the office bearer of the Zilla Parishad visited the
hostel and noted discrepancies in the Visit Book and also passed
remarks to cancel recognization of the hostel and subsequently, the
discrepancies were rectified. It was also noted by the Officers of the
Judgment 23 J.Cri.Appeal No.148.2006.odt
Social Welfare Department that an amount of Rs.60,000/- and
Rs.10,000/- from the account of the hostel was given to the other
work and accordingly, remarks were given. It further came in his
evidence that he was required to rectify the discrepancies mentioned
in the Visit Book, he was also under obligation to submit his report to
Zilla Parishad on every year. The amount of grant was dependent
upon the number of students. Fine was also imposed on noticing
irregularity and the amount of fine was decided to be deducted from
the amount of grant. Thus, the cross-examination of P.W.-3 shows
that there were so-many discrepancies, which are noted by the
present accused and also intimated to the Zilla Parishad and it was
intimated that if the discrepancies are not rectified, the permission
granted to the hostel can be cancelled. He has specifically admitted
that while inspecting the hostel by the accused, he has reported that
there are less students and recommended the less grant. Thus, from
the cross-examination, it reveals that it was the accused, who has
noted various discrepancies and also deducted the grant as there
were less students. The cross-examination of P.W.-1, who is the
sanctioning authority shows that bill in grant-in-aid was approved by
the accused prior to 20 days and the cheque was already issued,
whereas the complaint was filed on 09.11.1995.
Judgment 24 J.Cri.Appeal No.148.2006.odt
30. In the light of above cross-examination, if the evidence of
P.W.-4 Ashok Bisen who is the shadow panch is appreciated, his cross-
examination shows that departmental enquiry was initiated against
the accused and he appeared as a witness in the said departmental
enquiry. P.W.-4 has admitted that by issuing summons, he was called
before the departmental enquiry. The Officer while recording his
evidence whatever stated by him was recorded in writing. He had
stated the events as took place before him. He has stated that events
taking place in the Chamber of Waghmare were not visible from the
place where the clerk Junghare used to sit. He also stated that on the
day of raid, initially they have visited the table of one Junghare and
only the complainant went to the office of accused to make an
enquiry whether cheque in respect of grant is ready or not. Thus, the
cross-examination of P.W.-4 shows that on day of raid, they initially
went at the clerk Junghare and it was the complainant who alone
went at the office of the accused. Thus, it shows that neither the
demand nor the acceptance was made in presence of the P.W.-4.
31. Learned Counsel for the appellant invited my attention
towards the certified copy of deposition of P.W.-4 before the enquiry
officer. The evidence of P.W.-4 before the enquiry officer shows that
he and the complainant went to Shri Waghmare however, he asked
them to enquire about the cheque with Shri Junghare, hence they
Judgment 25 J.Cri.Appeal No.148.2006.odt
went to Shri Junghare and enquired about the cheque of grant. Shri
Junghare informed them that the cheque was signed, then Fuse gave
acknowledgment receipt of the cheque and signed the register and
received the cheque. Then Shri Fuse went to meet delinquent Shri
Waghmare, at that time he was sitting with Junghare Saheb. He
further stated that after receiving the cheque, Shri Fuse went to
Waghmare Saheb and later returned and informed him that he had
given him the money and then both came out and the Fuse gave
signal to the trap officers and thereafter, the accused was caught and
amount was recovered. Thus, the evidence of the P.W.-4 before the
enquiry officer shows that it was the only complainant who
approached to the present accused and neither the demand nor the
acceptance was made in presence of the P.W.-4.
32. Considering the evidence of P.W.-3 and P.W.-4, which is
not corroborating to each other, as far as the events and the sequence
of the events which happened. It is pertinent to note that as per the
evidence of P.W.-3 Babarao Fuse, he and panch immediately
approached to the accused by visiting his office. During evidence
before the Court, P.W.-4 has also narrated the same, but his evidence
before the enquiry officer is contradictory, which shows that though
they approached to the accused, but accused asked them to enquire
with Shri Junghare, they obtained the cheque and, therefore, by
Judgment 26 J.Cri.Appeal No.148.2006.odt
asking him to sit in the cabin of Shri Junghare, only complainant
approached to the accused and thereafter informed to the shadow
panch that he has handed over the amount to the accused. Thus, the
evidence of the panch witness before the enquiry officer and before
the Court is contradictory to each other. The events narrated by the
shadow panch before the enquiry officer requires to be appreciated in
the light of admission of P.W.-1 sanctioning authority, who has
admitted during his cross-examination that bill in grant-in-aid was
approved by the accused prior to 20 days and it was for the amount
of bill of grant-in-aid. If this admission is taken into consideration,
then admittedly, no work was pending with the accused on the day
when the trap was led. The Investigating Officer is also examined as
P.W.-5, who has narrated about the post-trap panchnama. He has also
admitted that he has adduced the evidence in the departmental
enquiry initiated against the accused in respect of this incident. He
has not collected any documentary evidence to show that the
complainant had come to Wardha on 30.10.1995. He further
admitted that prior to the demand dated 08.11.1995, there was a
prior demand on 30.10.1995. He has not collected any evidence
regarding the said prior demand. He shown his ignorance about the
fact that accused has visited the hostel and noted the irregularities
and mismanagement of the hostel. He also admitted that during
Judgment 27 J.Cri.Appeal No.148.2006.odt
investigation it was transpired to him that prior to 20 days of the
incident, the accused has sent the papers after necessary sanction for
preparing cheque in respect of the amount of grant. His cross-
examination further shows that the work of preparing the cheque was
not under the control of the accused, it was to the Cash and Finance
Department. He admitted that cheque for the amount of the grant
was received by the office of the accused from the office of the Cash
and Finance Department, Account Officer on the day of the trap itself.
Thus, the Investigating Officer also shows that on the day of the trap,
no work was pending with the accused.
33. To support the defence, the accused has examined two
defence witnesses one Ramkrushna Ganjiwale who was President of
the Trust named as Hutatma Smarak Simiti. As per his evidence, the
accused who was Social Welfare Officer was frequently inspected the
hostel and pointed out some discrepancies in the Visit Book. The
another defence witness examined is the Ramdas Talanje, who was
working as a Regional Special Officer, Departmental Inquiry, Nagpur
Division, Nagpur, who stated that after recording the evidence and
after hearing the delinquent as well as the Presenting Officer, he has
exonerated the accused from the departmental enquiry. He stated
that he has recorded the evidence of witness Ashok Sadashiv Bisen in
departmental enquiry and stated that his evidence is recorded as per
Judgment 28 J.Cri.Appeal No.148.2006.odt
stated by the said witness. He admitted that said witness Ashok
Bisen was not declared hostile by the Presenting Officer in the said
departmental enquiry.
34. Thus, after appreciating the evidence, it reveals that on
the day of raid, no work was pending with the accused. It is alleged
by the complainant that he was told by the accused that unless and
until amount is paid, the cheque of the grant will not be issued to
him. In fact, the entire evidence shows that prior to 20 days of the
incident, i.e. prior to the first demand dated 30.10.1995, the work
was completed by the accused. The evidence of P.W.-1 and P.W.-5 who
specifically admitted that prior to 20 days itself, the accused has
granted the sanction for the grant-in-aid and the work of preparing
the cheque was not with the accused. This evidence is to be
appreciated in the light of the evidence of panch witness who before
the enqiry officer stated that after meeting to the accused, the
accused asked to meet the clerk Shri Junghare, said Junghare has
handed over them cheque, thereafter, only the complainant went to
meet the accused and informed that he has handed over the amount
of Rs.4,000/- to the accused. Thus, neither demand nor acceptance
was before the P.W.-4, as per his evidence before the enquiry officer.
Admittedly, before the Court, he has given the contrary statement.
Judgment 29 J.Cri.Appeal No.148.2006.odt
35. The learned Counsel Mr. Daga submitted that when the
accused is exonerated from the departmental enquiry, the criminal
prosecution on the same set of facts and circumstances, cannot be
allowed to continue on underline principle that higher standard of
proof is required in criminal cases. In support of his contention, he
placed reliance on Ashoo Surendranath Tewari Vs. Deputy
Superintendent of Police, EOW, CBI (cited supra), wherein the
Hon'ble Apex Court in paragraph No.8 held that, a number of
judgments have been held that the standard of proof in a
departmental proceeding, being based on preponderance of
probability is somewhat lower than the standard of proof in a
criminal proceedings where the case has to be proved beyond
reasonable doubt. By referring the judgment of Prabhu Saran Rajya
Vs. State of Bihar, reported in (1996) 9 SCC 1, by reproducing the
paragraph no.3 therein which is as follows :
"3. The short question that arises for our
consideration in this appeal whether the respondent if
justified in pursuing the prosecution against the
appellant under Section 5(2) read with Section 5(1)
(e) of the Prevention of Corruption Act, 1947
notwithstanding the fact that on an identical charge
the appellant was exonerated in the departmental
proceedings in the light of the report submitted by the
Judgment 30 J.Cri.Appeal No.148.2006.odt
Central Vigilance Commission and concurred by the
Union of Public Service Commission."
The Hon'ble Apex Court held that the ratio which can be
culled out from these decisions can broadly be stated as follows :
(i) Adjudication proceeding and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceeding is not necessary
before initiating criminal prosecution;
(iii) Adjudication proceeding and criminal proceeding are
independent in nature to each other;
(iv) The finding against the person facing prosecution in the
adjudication proceeding is not binding on the proceeding
for criminal prosecution;
(v) Adjudication proceeding by the Enforcement Directorate
is not prosecution by a competent court of law to attract
the provisions of Article 20(2) of the Constitution or
Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceeding in favour of
the person facing trial for identical violation will depend
upon the nature of finding. If the exoneration in
adjudication proceeding is on technical ground and not
on merit, prosecution may continue; and
Judgment 31 J.Cri.Appeal No.148.2006.odt
(vii) In case of exoneration, however, on merits where
allegation is found to be not sustainable at all and person
held innocent, criminal prosecution on the same set of
facts and circumstances can not be allowed to continue,
the underlying principle being the higher standard of
proof in criminal cases.
Thus, the Hon'ble Apex Court held that criminal
prosecution on the same set of facts and circumstances cannot be
allowed to continue.
36. The learned Counsel for the appellant further placed
reliance on Radheshyam Kejriwal Vs. State of West Bengal (cited
supra), wherein also the Hon'ble Apex Court held that, exoneration in
related adjudication proceedings of civil nature under the relevant
statue, in case of exoneration on merits in such adjudication
proceedings, where the allegations are found to be not sustainable at
all and person concerned is held innocent, criminal prosecution on
the same set of facts and circumstances cannot be allowed to
continue, underlying principle being the higher standard of proof in
criminal cases. The Hon'ble Apex Court further held that,
adjudication proceedings are decided on the basis of preponderance
of evidence of a little higher degree whereas in a criminal case entire
Judgment 32 J.Cri.Appeal No.148.2006.odt
burden to prove beyond all reasonable doubt lies on the prosecution.
The standard of proof in a criminal case is much higher than that of
the adjudication proceedings. The Enforcement Directorate has not
been able to prove its case in the adjudication proceedings and the
appellant has been exonerated on the same allegation. The appellant
is facing trial in the criminal case therefore, the determination of
facts in the adjudication proceedings cannot be said to be irrelevant
in the criminal case. It is further held by the Hon'ble Apex Court that
there may appear to be some conflict between the views taken by the
Hon'ble Supreme Court of India in the cases of Standard Chartered
Bank(1) Vs. Directorate of Enforcement, reported in (2006) 4 SCC
278 and Collector of Customs Vs. L.R. Melwani, reported in AIR 1970
SC 962 on the one hand holding that adjudication proceedings and
criminal proceedings are two independent proceedings and both can
go on simultaneously and the finding in the adjudication proceedings
is not binding on the criminal proceedings and on the other hand the
judgments in Uttam Chand Vs. ITO, reported in (1982) 2 SCC 543,
G.L. Didwania Vs. ITO, reported in 1995 Supp (2) SCC 724 and K.C.
Builders Vs. CIT, reported in (2004) 2 SCC 731, wherein the Supreme
Court had taken a view that when there is categorical finding in the
adjudication proceedings exonerating the person which is binding
and conclusive, the prosecution cannot be allowed to stand. The
Judgment 33 J.Cri.Appeal No.148.2006.odt
judgments of the Supreme Court are not to be read as a statue and
when viewed from that angle there does not seem any conflict
between the two sets of decisions.
The Hon'ble Apex Court further held that the ratio which
can be culled out from the said decisions can broadly be stated as
follows :
(i) Adjudication proceeding and criminal prosecution can be
launched simultaneously;
(ii) Decision in adjudication proceeding is not necessary
before initiating criminal prosecution;
(iii) Adjudication proceeding and criminal proceeding are
independent in nature to each other;
(iv) The finding against the person facing prosecution in the
adjudication proceeding is not binding on the proceeding
for criminal prosecution;
(v) Adjudication proceeding by the Enforcement Directorate
is not prosecution by a competent court of law to attract
the provisions of Article 20(2) of the Constitution or
Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceeding in favour of
the person facing trial for identical violation will depend
upon the nature of finding. If the exoneration in
Judgment 34 J.Cri.Appeal No.148.2006.odt
adjudication proceeding is on technical ground and not
on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where
allegation is found to be not sustainable at all and person
held innocent, criminal prosecution on the same set of
facts and circumstances can not be allowed to continue,
the underlying principle being the higher standard of
proof in criminal cases.
Thus, the Hon'ble Apex Court held that in a case of
exoneration on merit, in such adjudication proceedings, where
allegations are found to be not sustainable at all and person
concerned to held innocent, criminal prosecution on the same set of
facts and circumstances can not be allowed to continue underlying
principle of being the higher standard of proof in criminal cases.
37. In this Case, though the defence witnesses are cross-
examined at length, nothing incriminating came on record to
disbelieve them. Moreover, their evidence is also corroborated by the
circumstances that the evidence of P.W.-4 shows that neither demand
nor acceptance was in his presence, which was stated by him before
the enquiry officer. The said incriminating portion was put to him
Judgment 35 J.Cri.Appeal No.148.2006.odt
during the cross-examination, but no probable explanation was given
by him regarding the said evidence.
38. The Constitution Bench of the Hon'ble Apex Court in the
case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi), reported in
2022 LiveLaw (SC) 1029 held that in order to bring home the guilt of
the accused, the prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct evidence which can be in
the nature of oral evidence or documentary evidence. The Hon'ble
Apex Court, while discussing expression "accept", referred the
judgment in the case of Subhash Parbat Sonvane vs. State of Gujarat,
reported in (2002)5 SCC 86 observed that mere acceptance of money
without there being any other evidence would not be sufficient for
convicting the accused under Section 13(1)(d)(i). In Sections and
13(1) and (b) of the Act of 1988, the Legislature has specifically used
the words 'accepts' or 'obtains'. As against this, there is departure in
the language used in clause (1)(d) of Section 13 and it has omitted
the word 'accepts' and has emphasized the word 'obtains'. In sub
clauses (i) and (ii) (iii) of Section 13(1)(d), the emphasize is on the
word "obtains". Therefore, there must be evidence on record that
accused 'obtained' for himself or for any other person any valuable
thing or pecuniary advantage by either corrupt or illegal means or by
Judgment 36 J.Cri.Appeal No.148.2006.odt
abusing his position as a public servant or he obtained for any person
any valuable thing or pecuniary advantage without any public
interest.
While discussing the expression "accept", the Hon'ble
Apex Court observed that "accepts" means to take or receive with
"consenting mind". The 'consent' can be established not only by
leading evidence of prior agreement but also from the circumstances
surrounding the transaction itself without proof of such prior
agreement. If an acquaintance of a public servant in expectation and
with the hope that in future, if need be, he would be able to get some
official favour from him, voluntarily offers any gratification and if the
public servant willingly takes or receives such gratification it would
certainly amount to 'acceptance' and, therefore, it cannot be said that
as an abstract proposition of law, that without a prior demand there
cannot be 'acceptance'. The position will however, be different so far
as an offence under Section 5(1)(d) read with Section 5(2) of the
1947 Act is concerned. Under the said Sections, the prosecution has
to prove that the accused 'obtained' the valuable thing or pecuniary
advantage by corrupt or illegal means or by otherwise abusing his
position as a public servant and that too without the aid of the
statutory presumption under Section 4(1) of the 1947 Act as it is
available only in respect of offences under Section 5(1)(a) and (b)
Judgment 37 J.Cri.Appeal No.148.2006.odt
and not under Section 5(1)(c), (d) or (e) of the 1947 Act. According
to this court, 'obtain' means to secure or gain (something) as the
result of request or effort. In case of obtainment the initiative vests in
the person who receives and in that context a demand or request
from him will be a primary requisite for an offence under Section
5(1)(d) of the 1947 Act unlike an offence under Section 161 of the
Indian Penal Code, which can be established by proof of either
'acceptance' or 'obtainment'.
39. In the light of the above well settled legal position, if the
evidence is appreciated, there is no dispute as to the fact that the
prosecution is under obligation to prove the demand as well as the
acceptance. The evidence of the complainant namely Babarao Fuse
and shadow panch P.W.-4 Ashok Bisen appears to be not consistent.
As per the complaint, the demand was made in his presence whereas,
the evidence of shadow panch was impeached during the cross-
examination by showing his earlier statement/evidence before the
inquiry Officer. Thus, the evidence adduced by the shadow panch is
not inspiring the confidence. If the evidence of complainant is
appreciated in the light of the fact that the accused has already
sanctioned grant prior to 20 days i.e. prior to the first demand, the
accused has visited the hostel at various occasions and noted the
discrepancies and also noted that there were less students shown by
Judgment 38 J.Cri.Appeal No.148.2006.odt
the complainant and therefore, the amount of grant was reduced by
him. If the entire evidence is appreciated, there is a reason for the
complainant to implicate the accused falsely. Considering the entire
evidence, the possibility of implicating the accused falsely in the
alleged incident cannot be ruled out.
40. It is well settled that the evidence of complainant should
be corroborated in material particulars.
41. The Hon'ble Apex Court in the case of Panalal
Damodar Rathi vs. State of Maharashtra, reported in (1979)4 SCC
526 has held that there could be no doubt that the evidence of the
complainant should be corroborated in material particulars. After
introduction of Section 165-A of the Indian Penal Code making the
person who offers bribe guilty of abetment of bribery, the
complainant cannot be placed on any better footing than that of an
accomplice and corroboration in material particulars connecting the
accused with the crime has to be insisted upon. The evidence of the
complainant regarding the conversation between him and the
accused has been set out earlier. As the entire case of the prosecution
depends upon the acceptance of the evidence relating to the
conversation between the complainant and the appellant during
which the appellant demanded the money and directed payment to
the second accused which was accepted by the complainant, we will
Judgment 39 J.Cri.Appeal No.148.2006.odt
have to see whether this part of the evidence of the complainant has
been corroborated. The Hon'ble Apex Court held that it should
corroborate to each other.
In the decision of the Hon'ble Apex Court in the case of
Mukhtiar Singh (since deceased) through his LR vs. State of Punjab,
reported in 2017 SCC OnLine SC 742, also it is held that the
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.
42. While deciding the issue involving the offence under the
Act of 1988, a fact required to be considered is that the evidence of
complainant P.W.3 Babarao Fuse will have to be scrutinized
meticulously. The testimony of such person requires careful scrutiny.
43. In the case of M.O.Shamsudhin vs. State of Kerala,
reported in (1995) 3 SCC 351, 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
Judgment 40 J.Cri.Appeal No.148.2006.odt
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.
44. In the case of Bhiva Doulu Patil vs. State of Maharashtra,
reported in 1963 Mh.L.J. (SC) 273, 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."
45. Thus, in catena of decisions, it is held that complainant
himself is in the nature of accomplice and his story prima facie
suspects for which corroboration in material particulars is necessary.
46. It is well settled that mere possession and recovery of
currency notes from accused without proof of demand would not
Judgment 41 J.Cri.Appeal No.148.2006.odt
establish an offence under Section 7 as well as Section 13(1)(d)(i)(ii)
of the Act of 1988.
47. It is held by the Hon'ble Apex Court in paragraph Nos.13
and 14 in the case of Mukhtiar Singh (since deceased) through his LR
vs. State of Punjab (supra) as follows:
"13. Before averting to the evidence, apt it would be to
refer to the provisions of the Act whereunder the original
accused had been charged:
"7. Public servant taking gratification other than
legal remuneration in respect of an official act. -
Whoever, being, or expecting to be a public
servant, accepts or obtains or agrees to accept or
attempts to obtain from any person, for himself or
for any other person, any gratification whatever,
other than legal remuneration, as a motive or
reward for doing or forbearing to do any official
act or for showing or forbearing to show, in the
exercise of his official functions, favour or
disfavour to any person or for rendering or
attempting to render any service or disservice to
any person, with the Central Government or any
State Government or Parliament or the
Legislature of any State or with any local
authority, corporation or Government company
referred to in clause (c) of section 2, or with any
public servant, whether named or otherwise, shall
be punishable with imprisonment which shall be
not less than three years but which may extent to
seven years and shall also be liable to 2 (2014) 5
SCC 103 3 (2016) 11 SCC 357 fine.
Judgment 42 J.Cri.Appeal No.148.2006.odt
13. Criminal misconduct by a public servant - (1)
A public servant is said to commit the offence of
criminal misconduct, ............... (2)..............."
14. The indispensability of the proof of demand and
illegal gratification in establishing a charge under
Sections 7 and 13 of the Act, has by now engaged the
attention of this Court on umpteen occasions. In
A.Subair vs. State of Kerala, this Court propounded that
the prosecution in order to prove the charge under the
above provisions has to establish by proper proof, the
demand and acceptance of the illegal gratification and
till that is accomplished, the accused should be
considered to be innocent."
48. In the case of The State of Maharashtra vs. Ramrao
Marotrao Khawale, reported in 2017 ALL MR (Cri) 3269, this court
has held that when a trap is set for proving the charge of corruption
against a public servant, evidence about prior demand has its own
importance. It is further held that the reason being that the
complainant is also considered to be an interested witness or a
witness who is very much interested to get his work done from a
public servant at any cost and, therefore, whenever a public servant
brings to the notice of such an interested witness certain official
difficulties, the person interested in work may do something to tempt
the public servant to bye-pass the rules by promising him some
benefit. Since the proof of demand is sine qua non for convicting an
accused, in such cases the prosecution has to prove charges against
Judgment 43 J.Cri.Appeal No.148.2006.odt
accused. Whereas, burden on accused is only to show probability
and he is not required to prove facts beyond reasonable doubt.
49. The Hon'ble Apex Court in the case of Mohmoodkhan
Mahboobkhan Pathan vs. State of Maharashtra, reported in (1997)10
SCC 600, held that the primary condition for acting on the legal
presumption under Section 4(1) of the Act is that the prosecution
should have proved that what the accused received was gratification.
The word "gratification" is not defined in the Act. Hence it must be
understood in its literal meaning. In the Oxford Advanced Learner's
Dictionary of Current English, the work "gratification" is shown to
have the meaning "to give pleasure or satisfaction to". The word
"gratification" is used in Section 4(1) to denote acceptance of
something to the pleasure or satisfaction of the recipient. If the
money paid is not for personal satisfaction or pleasure of the
recipient it is not gratification in the sense it is used in the section. In
other words unless the prosecution proves that the money paid was
not towards any lawful collection or legal remuneration the court
cannot take recourse to the presumption of law contemplated in
Section 4(1) of the Act, though the court is not precluded from
drawing appropriate presumption of fact as envisaged in Section 114
of the Evidence Act at may stage.
Judgment 44 J.Cri.Appeal No.148.2006.odt
50. In the case of State of Maharashtra vs. Rashid B.Mulani,
reported in (2006)1 SCC 407, it is held that a fact is said to be
proved when its existence is directly established or when upon the
material before it the Court finds its existence to be so probable that
a reasonable man would act on the supposition that it exists. Unless
therefore, the explanation is supported by proof, the presumption
created by the provision cannot be said to be rebutted. Something
more, than raising a reasonable probability, is required for rebutting a
presumption of law. Though, it is well-settled that the accused is not
required to establish his explanation by the strict standard of 'proof
beyond reasonable doubt', and the presumption under Section 4 of
the Act would stand rebutted if the explanation or defence offered
and proved by the accused is reasonable and probable.
51. In the present case, as noted above, the evidence as to
the demand of illegal gratification is not satisfactory and convincing
and since the proof of demand is a sine quo non for convicting the
accused in such cases, it cannot be said that the prosecution has been
successful in proving its case beyond reasonable doubt. The another
circumstance is that the accused is exonerated from the charges in a
departmental enquiry. In view of the ratio laid down by the Hon'ble
Apex Court wherein it is held that the standard of proof in a criminal
case is much higher than the standard of proof in departmental
Judgment 45 J.Cri.Appeal No.148.2006.odt
proceedings. When the accused is exonerated in the departmental
enquiry, then on an identical charges the prosecution cannot be
allowed to continue. In the present case also the accused is already
exonerated by the adjudication of the said enquiry.
52. After appreciating the evidence on record the fact that
accused has demanded the amount for sanctioning the grant is not
substantiated by the material evidence. It is also well settled that
while deciding the offence under the Act of 1988, the complainant's
evidence is to be scrutinized meticulously. There could be no doubt
that the evidence of the complainant should be corroborated in
material particulars. 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.
53. As far as applicability of presumption is concerned, the
Hon'ble Apex Court in the case of Neerja Dutta Vs. State (Govt. of
NCT of Delhi) (referred 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 interference
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
Judgment 46 J.Cri.Appeal No.148.2006.odt
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.
54. In the instant case, as observed earlier that prior demand
by the accused is not proved by the prosecution, a doubt is created as
to the demand of the amount as no work was pending with the
accused on the date of trap. The evidence of the shadow panch
before the enquiry officer and before the Court is not consistent. The
accused is exonerated from the charges in departmental enquiry after
due adjudication. The sanctioning authority has not exercised the
power strictly keeping in mind all the relevant facts and material and
not accorded the sanction accordingly. The sanction order nowhere
discloses that who has applied its mind to accord the sanction. Thus,
the entire exercise carried out by the sanctioning authority is without
application of mind. The evidence as to the demand and acceptance
is also not satisfactory. As such, the appeal deserves to be allowed
and, therefore, I proceed to pass following order :
ORDER
(1) The criminal appeal is allowed.
Judgment 47 J.Cri.Appeal No.148.2006.odt
(2) The judgment and order of conviction and sentence dated
13.03.2006 passed by learned Judge, Special Court,
Wardha in Special (ACB) Case No.5/1997 convicting and
sentencing the accused is hereby quashed and set aside.
(3) The accused is acquitted of offences for which he was
charged and convicted.
The appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 22/01/2024 18:43:14
