Bombay High Court
Ambadas Devram Chavan vs The State Of Maharashtra on 22 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:3499
PMB 1.APEAL.640-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.640 OF 2015
AMBADAS DEVRAM CHAVAN ..APPELLANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
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Adv. Pawan Mali for the appellant.
Mr. A. R. Patil, APP for the State.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 22, 2024
ORAL JUDGMENT :
1. Heard learned counsel for the appellant and learned
APP for the State. Perused the paper-book and notes of
evidence.
2. This is an appeal filed by the appellant-accused No.2.
The accused No.2 was convicted by the Special Judge (Anti-
Corruption) Pune for an offence punishable under Section 7
of the Prevention of Corruption Act, 1988 (hereafter "P.C.
Act", for short) and sentenced to suffer rigorous
imprisonment for six months and pay fine of Rs.3,000/-, in
default to suffer further rigorous imprisonment for one
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month. Along with the accused No.1, the appellant was also
convicted for an offence punishable under Sections 13(1)(d)
read with 13(2) of the P.C. Act and sentenced to suffer
rigorous imprisonment for one year and pay fine of
Rs.5,000/, in default to suffer further rigorous
imprisonment for three months.
3. PW-1 - Pramod Roopchand Solanki is the complainant.
The appellant-accused No.2 was working as a Senior Clerk
in Food Distribution Office. PW-1 filed the complaint at
Exhibit- 11. Santoshi Roopchand Solanki is the real sister of
PW-1. She is having a fair price shop in her name. Once
during the investigation, as a result of some alleged
irregularities her license was cancelled. In appeal the
cancellation order was set aside. A request was made by
PW-1 to Mr. Dnyaneshwar Jawanjal, Deputy Commissioner,
Pune for processing the renewal of the license in view of
PW-1's sister having succeeded in the appeal. PW-1
deposed that Mr. Jawanjal demanded bribe amount of
Rs.2,00,000/-. Mr. Jawanjal asked PW-1 to meet Mr. Patki
(accused No.1) who was working as a Junior Clerk in the
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office. After negotiation the amount was reduced to
Rs.1,00,000/-.
4. PW-1 met Mr. Jawanjal and offered to pay part
payment in the sum of Rs.50,000/- within 2 to 3 months.
Mr. Jawanjal however was not ready to grant this long a
time. The accused No.1 informed PW-1 that the amount will
have to be arranged within eight days. A complaint dated
29.10.2012 at Exhibit-11 came to be recorded in the Anti-
Corruption Bureau office (hereafter "A.C.B.", for short).
A.C.B. officials decided to verify the demand. A.C.B. officials
hid a voice recorder on the person of PW-1. PW-1 and
panch witness Mr. Gunjal were sent to meet accused No.1.
Accused No.1 asked PW-1 whether the amount was ready.
PW-1 informed that the amount was ready whereupon
accused No.1 told him that he would meet Mr. Jawanjal and
request him to sign the order. Accused No.1 entered the
cabin of Mr. Jawanjal and asked PW-1 to bring the amount.
The transcript of the recorded conversation was prepared in
the office of the A.C.B.
5. On 31.10.2012, PW-1 and panch witnesses again
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visited the A.C.B. office. A.C.B. officials sent PW-1 and
panch witness to meet Mr. Jawanjal. Again voice recorder
was planted on the person of PW-1. They met accused
No.1. PW-1 entered the cabin of Mr. Jawanjal. Mr. Jawanjal
asked PW-1 to meet accused No.1-Patki and act as per his
say. Accused No.1 assured PW-1 that he will obtain the
signature of Mr. Jawanjal and bring the order. PW-1
enquired as regards the procedure to be followed for
renewal of the license. Accused No.1 informed PW-1 that he
will have to get a challan made of Rs.10,000/- and that
PW-1 will have to deposit the challan in the treasury office.
6. After reaching the office of A.C.B., PW-1 was called
upon to bring the amount of Rs.60,000/-. The amount of
Rs.60,000/- consisting 120 currency notes in the
denomination of Rs.500/- was treated with anthracene
powder. A.C.B. officials kept an amount of Rs.50,000/- in
the pant pocket of PW-1. An amount of Rs.10,000/- was
kept in his shirt pocket. PW-1 was instructed to give a
missed call as soon as accused No.1 accepted the bribe
amount.
PMB 1.APEAL.640-15.doc
7. PW-1 and panch witness entered the office of the
accused No.1. PW-1 enquired with the accused No.1
whether Mr. Jawanjal had signed the order. Accused No.1
went in the cabin of Mr. Jawanjal and obtained the signature
on the order and came back. Accused No.1 handed over the
order and obtained the signature of PW-1 on office copy of
the order. Accused No.1 told the complainant to go to one
table and deposit fine amount of Rs.10,000/- by way of
challan. It is in the evidence of PW-1 that as the bank had
closed by then, the amount of Rs.10,000/- was handed over
to the person sitting at the table where the challan was to
be issued. The said person (appellant) asked him to come
the next day and collect the receipt of payment. PW-1 then
went to the table of accused No.1 and informed him that he
had brought an amount of Rs.50,000/- in order to give it to
Mr. Jawanjal. PW-1 asked accused No.1 whether the amount
is to be paid to Mr. Jawanjal or accused No.1. Accused No.1
asked PW-1 to handover the amount to him. PW-1 took out
the amount from his pant pocket and kept it on the table in
front of accused No.1. Accused No.1 picked up that amount
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and kept it in the drawer of his table. PW-1 requested the
accused No.1 to handover the amount to Mr. Jawanjal. After
Mr. Jawanjal came out of his cabin, PW-1 gave missed call
to the A.C.B. officials. PW-1 told them that an amount of
Rs.50,000/- is in the drawer of accused No.1 and an
amount of Rs.10,000/- was at the challan table.
8. It is thus seen from the deposition of PW-1 that the
demand of the bribe was made by Mr. Jawanjal, Deputy
Commissioner from the complainant. Mr. Jawanjal had
asked the accused No.1 who was working as a Junior Clerk
at Food Distribution Office to co-ordinate with the
complainant. The bribe amount of Rs.50,000/- was
accepted by the accused No.1 on behalf of Mr. Jawanjal. It
is pertinent to mention that in the deposition itself in
paragraph 1 PW-1 has specifically said that penalty of
Rs.10,000/- was imposed by the Appellate Authority
towards fine. Even according to PW-1 accused No.1 had
stated that he would give him a challan of Rs.10,000/- and
the amount had to be deposited in the treasury office. PW-1
does not even disclose the identity of the person to whom
PMB 1.APEAL.640-15.doc
this amount of Rs.10,000/- towards payment of the challan
was handed over. The deposition of PW-1 would reveal that
there was no demand of bribe amount by the present
appellant-accused No.2 at any point of time. It is the
accused No.1 who had asked PW-1 to deposit the amount of
Rs.10,000/- for preparing a challan purportedly with the
appellant. Since the banking hours were over, the said
amount was kept in the drawer of the appellant as per
PW-1. It is pertinent to note that PW-1 has not been
declared hostile but the prosecution is relying on the
evidence of PW-1 to prove the case against the present
appellant. When it is the specific version of PW-1 that the
bribe amount was demanded by Mr. Jawanjal, Deputy
Commissioner, which amount was accepted by accused No.1
on behalf of Mr. Jawanjal, it is surprising as to why
Mr. Jawanjal is not made an accused.
9. Having regard to the evidence of PW-1-the
complainant, I would have had no hesitation in observing
that demand made by the appellant-accused No.2 is not
proved. Furthermore, the evidence on record clearly reveals
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that the accused No.1 had asked PW-1 to pay the amount
of Rs.10,000/- towards preparing a challan which amount
was to be deposited in the treasury office. From the
evidence of PW-1 it clearly reveals that a penalty of
Rs.10,000/- was imposed by the Appellate Authority for
restoring the license of the fair price shop the formalities
consequent thereto were to be completed by Mr. Jawanjal
for which work the bribe amount of Rs.50,000/- was
demanded. From the evidence of PW-1 it cannot be said
with certainty that the amount of Rs.10,000/- which was
handed over by him to the appellant was towards illegal
gratification or bribe. The evidence of PW-1 is not sufficient
to establish beyond reasonable doubt that the amount of
Rs.10,000/- which was handed over to the accused No.2
was a bribe amount as it is probable that the said amount
was towards the fine amount of Rs.10,000/- which was to
be deposited in the treasury office by way of challan
towards the fine imposed by the Appellate Authority.
10. However, learned APP heavily relied on the evidence of
PW-2 - Sachin Indrasen Gunjal who is the shadow witness
PMB 1.APEAL.640-15.doc
for the verification of the demand as well as acceptance.
Learned APP submitted that the fact of demand and
acceptance of the bribe amount of Rs.10,000/- by the
accused No.2 can be clearly established from the evidence
of PW-2 and that of the Investigating Officer - PW-3. The
submission of learned APP that the presumption in law
under Section 20 of the Act would apply is without any
merit as it is well settled that the presumption in law under
Section 20 of the Act would apply only if the fact of demand
and acceptance of illegal gratification, as the case may be,
is proved.
11. It is pertinent to note that only three witnesses are
examined by the prosecution. Let me examine the evidence
of PW-2 in the context of the submission made by learned
APP. It is in the evidence of PW-2 i.e. the shadow witness
that accused No.1 told the complainant that he will have to
pay some amount to the present appellant. It is then
deposed by PW-2 that he and the complainant went to the
table of the appellant when the demand of Rs.10,000/-
towards the bribe was made. The appellant told them that
PMB 1.APEAL.640-15.doc
he will prepare a challan so as to pay the fine. This version
of PW-2 about the demand made by the accused No.2 of
Rs.10,000/- is at complete variance with that of the
deposition of the complainant. The complainant has not
deposed about the demand of the bribe amount by the
present appellant but in fact has categorically deposed that
the payment of Rs.10,000/- to be made to the present
appellant as per the say of the accused No.1 was towards
preparation of the challan for payment of fine. There is
complete variance in the version of PW-1 and PW-2.
12. Moreover, in the evidence of PW-2 it is stated that
after treating the amount of Rs.60,000/- with anthracene
powder, the bundle of Rs.50,000/- as well as that of
Rs.10,000/- was kept by PW-1 in the right side pant pocket.
This again is at the variance of with the version of PW-1
who says that the amount of Rs.50,000/- was kept in the
right side pant pocket and whereas the amount of
Rs.10,000/- was kept in the shirt pocket. It is again
important to note that PW-1 in his evidence has stated that
amount of Rs.10,000/- was paid to the present appellant
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prior in point of time and thereafter the amount of
Rs.50,000/- to be paid to Mr. Jawanjal was handed over to
the accused No.1. This is contrary to the version of PW-2
when he says that the amount of Rs.50,000/- was first paid
to the accused No.1 and thereafter the complainant paid the
amount of Rs.10,000/- to the present appellant.
13. It is pertinent to note that PW-1 in his evidence has
deposed that an amount of Rs.10,000/- was paid for the
purpose of preparing a challan to accused No.2 when he
was sitting at his table and so also the amount of
Rs.50,000/- was then paid to accused No.1 in his office
which amount he kept it on his table. It needs to be noted
that there is variance in the evidence of PW-1 and that of
PW-2 over the place at which the amount was paid. It is in
the evidence of PW-2 that the complainant and accused
No.1 had come out of the office and proceeded towards a
neem tree in the compound under which the amount of
Rs.50,000/- was paid by the complainant to the accused
No.1. It is further in the evidence of PW-2 that thereafter
the complainant and the present appellant came out of the
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office and the bribe amount of Rs.10,000/- was paid by the
complainant to the present appellant under the same neem
tree. This version of PW-2 about the place where the bribe
amount was accepted is also at complete variance with that
of PW-1. So far as PW-3 - Investigating Officer is
concerned, it is in his evidence that the bribe amount was
accepted under the neem tree, however, PW-3 in his
deposition has stated that some unknown persons
accompanied PW-1-complainant for acceptance of the bribe
amount under the neem tree.
14. The trial Court relied upon the evidence of PW-2 and
PW-3 to arrive at a finding that the prosecution has proved
demand and acceptance. According to learned Special
Judge, as the PW-1 has not wholeheartedly supported the
case of the prosecution, the evidence of PW-2 and PW-3 can
be looked into to prove the prosecution case.
15. In the absence of any other evidence, there is no
reason why the evidence of PW-2 and PW-3 can be
considered. But when the PW-1 is examined as a
prosecution witness it is necessary to test whether the
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evidence of PW-2 is corroborated in all material particulars.
The evidence of PW-1 cannot be ignored.
16. The principles summarised by the Hon'ble Supreme
Court in Neeraj Dutta Vs. State (Government of NCT of
Delhi)1 needs to be borne in mind while deciding this
appeal. Paragraph 88 which is important reads thus :-
""88. What emerges from the aforesaid discussion is
summarised as under:
88.1. (a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the guilt
of the accused public servant under Section 7 and 3 (1)(d)
(i) and (ii) of the Act.
88.2. (b) 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.
88.3. (c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also be
proved by circumstantial evidence in the absence of direct
oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the public
servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver
without there being any demand from the public servant
and the latter simply accepts the offer and receives the
illegal gratification, it is a case of acceptance as
1 (2023) 4 SCC 731
PMB 1.APEAL.640-15.doc
per Section 7 of the Act. In such a case, there need not be
a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe-giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal
gratification emanates from the public servant. This is an
offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by
the bribe-giver and the demand by the public servant
respectively have to be proved by the prosecution as a fact
in issue. In other words, mere acceptance or receipt of an
illegal gratification without anything more would not make
it an offence under Section 7 or Section 13(1)(d), (i) and
(ii), respectively of the Act. Therefore, under Section 7 of
the Act, in order to bring home the offence, there must be
an offer which emanates from the bribe-giver which is
accepted by the public servant which would make it an
offence. Similarly, a prior demand by the public servant
when accepted by the bribe-giver and in turn there is a
payment made which is received by the public servant,
would be an offence of obtainment under Section 13(1)(d)
and (i) and (ii) of the Act.
88.5. (e) The 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.
88.6. (f) In the event the complainant turns 'hostile', or
has died or is unavailable to let in his evidence during trial,
demand of illegal gratification can be proved by letting in
the evidence of any other witness who can again let in
evidence, either orally or by documentary evidence or the
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prosecution can prove the case by circumstantial evidence.
The trial does not abate nor does it result in an order of
acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on
the proof of the facts in issue, Section 20 mandates the
court to raise a presumption that the illegal gratification
was for the purpose of a motive or reward as mentioned in
the said Section. The said presumption has to be raised by
the court as a legal presumption or a presumption in law.
Of course, the said presumption is also subject to rebuttal.
Section 20 does not apply to Section 13 (1)(d)(i) and (ii) of
the Act.
88.8. (h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption of fact
referred to above in sub-para 88.5(e), above, as the
former is a mandatory presumption while the latter is
discretionary in nature."
17. Applying the aforestated principles, I have no
hesitation in concluding that the prosecution has failed to
prove demand and acceptance qua the appellant.
18. In my opinion, the order passed by the Special Judge
convicting the appellant calls for interference. It is not as if
PW-1 has turned hostile. PW-1-the complainant has been
examined as a prosecution witness. The evidence of PW-1 is
completely at variance with that of PW-2 on material
aspects as discussed hereinabove. Moreover, it has come in
the evidence of PW-1 that the Appellate Authority has
imposed a fine of Rs.10,000/- and it is towards the payment
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of the fine amount of Rs.10,000/- that the accused No.1
directed PW-1 to pay the said amount to the appellant for
the purpose of preparing the challan. According to me the
demand of Rs.10,000/- was towards an illegal gratification
has not been established by the prosecution. On the basis
of evidence of PW-1, the demand as well as acceptance of
the amount as a bribe amount cannot be established. In
such view of the matter, to arrive at a conclusion that the
demand and acceptance of the bribe amount as against the
present appellant is proved only on the basis of the
evidence of the shadow witness will be highly unsafe.
Having regard to the material variance in the evidence of
PW-1 and PW-2, the benefit thereof will have to be given to
the appellant. I find from the evidence of PW-2 as regards
the demand made by the present appellant is only a vague
statement. When it is the prosecution case that there was a
demand made by the appellant, it was for the prosecution
to prove the demand which it has failed.
19. In this view of the matter, I have no hesitation in
holding that the prosecution has failed to prove the charge
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against the present appellant under Sections 7, 13(1)(d)
and 13(2) of the P.C. Act. The impugned order of the
Special Judge (Anti-Corruption), Pune dated 03.06.2015
passed in Special Case No.36 of 2013 convicting the
appellant is quashed and set aside. The appellant is
acquitted of the charges against him in Special Case No.36
of 2013. The fine amount which has been paid be refunded
to the appellant.
20. The appeal is allowed in the above terms.
(M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 23/01/2024 19:46:53
