Nimraj S/O Pandharinath Vispute vs The State Of Maharashtra Through Pso ...
2024 Latest Caselaw 7004 Bom

Bombay High Court

Nimraj S/O Pandharinath Vispute vs The State Of Maharashtra Through Pso ... on 5 March, 2024

2024:BHC-NAG:2645




              Judgment

                                                                   189 apeal124.12

                                             1

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

                          CRIMINAL APPEAL NO.124 OF 2012

              Nimraj s/o Pandharinath Vispute,
              aged about 53 years, occupation service,
              r/o 9, Runwall Regency, Near
              Maroti Temple, Kothrud, Pune.        ..... Appellant.
                                    :: V E R S U S ::
              The State of Maharashtra,
              Through Police Station Officer,
              Gadge Nagar Police Station,
              Amravati.                     ..... Respondent.
              =====================================
              Shri Ashish Fule, Counsel for the Appellant.
              Shri V.A.Thakare, Additional Public Prosecutor for the State.
              =====================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 21/02/2024
              PRONOUNCED ON : 05/03/2024

              JUDGMENT

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

challenged judgment and order dated 19.3.2012 passed by

learned Additional Sessions Judge, Amravati (learned Judge of

the trial court) in Special (ACB) Case No.04/2005.

2. By the said judgment impugned, the accused is

convicted for offence punishable under Section 7 of the

Prevention of Corruption Act, 1988 (the said Act) and

sentenced to suffer imprisonment for six months and to pay

.....2/-

Judgment

189 apeal124.12

fine Rs.2000/-, in default, to suffer simple imprisonment for

one month.

He is also convicted for offence punishable under

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

to suffer imprisonment for one year and to pay fine Rs.3000/-,

in default, to suffer simple imprisonment for two months.

Brief facts of the prosecution emerge from recorded

evidence and investigation papers are as follows:

Devidas Ugale (the complainant), was working as

Secretary of "Devara Sewa Sahakari Sanstha Limited" (the

society). The society used to advance loan to its members

and agricultural labourers. Shri Vinod Deshmukh was

Chairman of the society. In the year 2004, the society was

having 302 members out of which loan was disbursed to 137

members of the society. The Deputy Registrar, Cooperative

Societies was controlling authority. In the year 2004, the

accused was working as the Deputy Registrar, Cooperative

Societies, Amravati.

3. On 5.9.2003, the accused issued a Notice to the

society and asked to comply the said notice. By the Notice,

.....3/-

Judgment

189 apeal124.12

the society was asked to reduce number of members. The

said Notice was replied by the society. Prior to reply, another

notice dated 1.1.2004 was issued to the society contending

that directions issued are not complied by the society and

why action should not be taken. The explanation of the

society was called within two days and, therefore, the

complainant visited the office of the accused on 3.1.2004 and

requested for extension of time which was denied by the

accused and informed that he would issue Notice for

dissolution of the society. It is alleged that the accused asked

the complainant to pay Rs.5000/- to avoid dissolution of the

society. After negotiation, the amount was reduced to

Rs.3000/-. As the complainant was not desiring to pay the

amount, he approached Anti Corruption Bureau at Amravati

and lodged report on 3.1.2004.

4. After receipt of the report, office of the bureau called

two panchas. In presence of panchas, grievance of the

complainant was verified from the complainant by perusing

complaint. After following a due procedure, it was decided to

conduct a raid and the complainant and panchas were called

on 5.1.2004 in the office of the bureau. The complainant had

produced four currencies of Rs.500/- denomination and 10

.....4/-

Judgment

189 apeal124.12

currencies of Rs.100/- denomination. The demonstration as to

phenolphthalein powder and sodium carbonate solution was

shown. The said solution was applied on the tainted amount

and the amount was kept in right pocket of trouser of the

complainant. The necessary instructions were given to the

complainant and pancha Nos.1 and 2. As per instructions, the

complainant was instructed to hand over the amount only on

demand. Pancha No.1 asked to remain with the complainant

and pancha No.2 was asked to remain along with the raiding

party members. Accordingly, pre-trap panchanama was

drawn.

5. After the pre-trap panchanama, the complainant along

with panchas and raiding party members visited the office of

the accused. On demand by the accused, the complainant

handed over the said amount which is accepted by the

accused. The raiding party members were informed by giving

a signal. The tainted amount was seized from drawer of table

of the accused. The hands of the accused were examined.

The necessary documents were seized. Accordingly, post-trap

panchanama was drawn. The officer of the bureau lodged

report and after completion of investigation, chargesheet is

filed.

.....5/-

Judgment

189 apeal124.12

6. During trial, the prosecution examined in all five

witnesses, viz. Devidas Mahadevrao Ugale vide Exhibit-57

(PW1), the complainant; Sunil Jagannath Porwal vide Exhibit-

74 (PW2), the sanctioning authority; Ramesh Jagtap vide

Exhibit-86 (PW3), the shadow pancha; Santosh Hirde vide

Exhibit-91 (PW4), pancha No.2, and Kiran Dhote vide Exhibit-

100 (PW5), the trap officer.

7. Besides the oral evidence, the prosecution placed

reliance on Notice (Exhibits-58 and 59) issued by the Sub

Registrar Cooperative , letter to the Sub Registrar Cooperative

(Exhibit-60), complaint (Exhibit-61), letter to Sub Registrar

Cooperative (Exhibit-62), seizure memo (Exhibit-63), sanction

order (Exhibit-75), pre-trap panchanama (Exhibit-86), post-

trap panchanama (Exhibit-88), seizure memo (Exhibits-89 and

90), requisition letters (Exhibits-101 and 102), report (Exhibit-

104), and FIR (Exhibit-105).

8. After considering the evidence adduced during the

trial, learned Judge of the trial court held the accused guilty

and convicted and sentenced him as the aforesaid.

.....6/-

Judgment

189 apeal124.12

9. I have heard learned counsel Shri Ashish Fule for the

accused and learned Additional Public Prosecutor Shri

V.A.Thakare 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.

10. Learned counsel for the accused submitted that while

passing the judgment impugned, learned Judge of the trial

court had not considered that sanction is not proper and in

absence of proper sanction, the trial vitiates. Learned Judge

of the trial court failed to appreciate evidence of shadow

pancha PW3 Ramesh Jagtap who specifically admitted that

there was no demand by the accused. The material witness

Vinod Deshmukh, President of the Society is not examined.

The cross examination of complainant PW1 Devidas Ugale

shows that various flaws were noted by the accused under

whose control the society was working and, therefore, the

Notice was issued. Complainant PW1 Devidas Ugale and

other office bearers of the society were apprehending that the

society may be dissolved and, therefore, by thrusting the

amount in drawer of table of the accused, the accused is

falsely implicated. The sanction accorded contemplated

under Section 19 of the said Act is bad in law and, therefore,

.....7/-

Judgment

189 apeal124.12

the conviction of the present accused deserves to be set

aside.

11. In support of his contentions, learned counsel for the

accused placed reliance on following decisions:

1. Criminal Appeal Nos.509 and 510/2009 decided by this court at Aurangabad Bench on 19.4.2010 (Gopal s/o Nagnathrao Gunjikar vs. The State of Maharashtra and Dnyaneshwar s/o Rambhau Khokle vs. The State of Maharashtra);

2. Sopan vs. State of Maharashtra, through Anti Corruption Bureau1;

3. Mohd.Iqbal Ahmed vs State of Andhra Pradesh2;

4. Onkar Tukaram Ramteke vs. State of Maharashtra3;

5. Narendra vs. State of Maharashtra, through Anti Corruption Bureau, Nagpur4, and

6. Raghbir Singh vs. State of Punjab5.

12. Per contra, learned Additional Public Prosecutor for the

State submitted that the evidence of complainant PW1

Devidas Ugale sufficiently shows that there was a demand

and the amount is accepted as gratification amount. The

1 2023 SCC OnLine Bom 1904 2 (1979)4 SCC 172 3 2022 SCC OnLine Bom 685 4 2014 SCC OnLine Bom 1996 5 (1976)1 SCC 145

.....8/-

Judgment

189 apeal124.12

evidence of the complainant is corroborated on material

particulars. The sanction accorded is valid sanction. Mere

errors or omissions or irregularities are not fatal. Hence, no

interference is called for in the judgment and order of

conviction and sentence and the appeal deserves to be

dismissed.

13. In support of his contentions, learned Additional Public

Prosecutor for the State placed reliance on following

decisions:

1. Ram Sagar Pandit vs. State of Bihar6;

2. State, through Inspector of Police, A.P. vs. K.Narasimhachary7;

3. State of Madhya Pradesh vs. Harishankar Bhagwan Prasad Tripathi8;

4. Central Bureau Investigation vs. V.K.Sehgal and anr9;

5. State of Maharashtra, through CBI vs. Mahesh G.Jain10, and

6. CBI vs. Ashok Kumar Aggarwal11.

6 1963 Supp (2) SCR 652 7 (2005)8 SCC 364 8 (2010)8 SCC 655 9 (1999)8 SCC 501 10 (2013)8 SCC 119 11 (2014)14 SCC 295

.....9/-

Judgment

189 apeal124.12

14. Since question of validity of the sanction has been

raised as a primary point, it is necessary to discuss an aspect

of sanction. The sanction order was challenged on the ground

that the sanction was accorded without application of mind

and mechanically and, therefore, it is not a valid sanction.

15. In order to prove the sanction order, the prosecution

placed reliance on the evidence of sanctioning authority PW2

Sunil Porwal. The evidence of the said witness shows that in

the year 2005, he was working as Secretary of the

Government Maharashtra, Cooperation Marketing and

Textiles, Mumbai. The Deputy Registrar Cooperative Societies

was his subordinate. The authority to appoint and remove the

Deputy Registrars is with the Chief Minister, the Government

of Maharashtra and he was disciplinary authority. The power

to remove the Deputy Registrars is delegated to the

Secretary. His evidence further shows that he received papers

which are forwarded for according sanction. The department

perused and scrutinized those papers and came to conclusion

that there was a prima facie case to accord the sanction and

the sanction was accorded. During his cross examination, it

came on record that powers of appointing and removing the

Deputy Registrars, Cooperative Societies is with the

.....10/-

Judgment

189 apeal124.12

Government. He had not given documents showing that

powers were delegated to him to remove the Deputy

Registrars to the office of the bureau. The Home Department

and the Department of Cooperation both scrutinized papers.

The sanction order which is placed on record shows that in

first paragraph designation of the accused is mentioned. In

paragraph No.3, it is mentioned that the Government of

Maharashtra having fully examined the material before it and

considering all facts and circumstances disclosed therein, it is

satisfied that there is a prima facie case made out against the

accused and the sanction is accorded.

16. Learned counsel for the accused submitted that the

sanction order nowhere discloses that it is sanctioning

authority PW2 Sunil Porwal who accorded the sanction. The

sanction order also nowhere discloses that the said witness

has applied his mind and, thereafter, accorded the sanction.

The recital of the sanction order shows that it is the

Government of Maharashtra who examined material and

accorded the sanction. He submitted that this court in

Criminal Appeal Nos.509 and 510/2009 supra held that

under Secretary was not competent authority to issue

sanction order. It is the Principal Secretary who could have

.....11/-

Judgment

189 apeal124.12

taken such decision. He further submitted that the

Honourable Apex Court in the case of Mohd.Iqbal Ahmed vs

State of Andhra Pradesh supra held that court has to see

is whether or not sanctioning authority at the time of giving

sanction was aware of facts constituting of the offence and

applied its mind for the same. 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.

17. On the other hand, learned Additional Public

Prosecutor for the State vehemently submitted that burden of

proving requisite sanction rests on the prosecution which is

discharged in the present case. He submitted that mere

omission or irregularity is not sufficient to discard the

sanction. He submitted that this aspect is dealt with by the

Honourable Apex Court in the case of State of Madhya

Pradesh vs. Harishankar Bhagwan Prasad Tripathi

supra wherein it is held that while granting sanction, officer

.....12/-

Judgment

189 apeal124.12

concerned is not required to indicate that he has personally

scrutinized file and arrived at satisfaction for granting

sanction. He submitted that the similar view is taken by the

Honourable Apex Court in the case of Central Bureau

Investigation vs. V.K.Sehgal and anr supra and,

therefore, mere error or omission is not sufficient to discard

evidence of sanctioning authority.

18. Perusal of the sanction order reveals that the

Government of Maharashtra perused material and considering

all facts and circumstances accorded the sanction. The

sanction order nowhere states that it was sanctioning

authority PW2 Sunil Porwal who applied his mind and

accorded the sanction.

19. Whether the sanction is valid or not and when the

sanction can be called as valid, the same is settled by the

various decisions of the Honourable Apex Court as well as this

court.

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

Ahmad vs. State of Andhra Pradesh supra has held that

what the Court has to see is whether or not the sanctioning

.....13/-

Judgment

189 apeal124.12

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.

21. The Honourable Apex Court, in another decision, in

thea. case of CBI vs. Ashok Kumar Aggarwal supra relied

by ld. A.P.P 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

.....14/-

Judgment

189 apeal124.12

Honourable Apex Court that the record so sent should also

contain the material/document, if any, which may tilt the

balance in favour of the accused and on the basis of which,

the competent authority may refuse sanction. The authority

itself has to do complete and conscious scrutiny of the whole

record so produced by the prosecution independently applying

its mind and taking into consideration all the relevant facts

before grant of sanction while discharging its duty to give or

withhold the sanction. The power to grant sanction is to be

exercised strictly keeping in mind the public interest and the

protection available to the accused against whom the

sanction is sought. The order of sanction should make it

evident that the authority had been aware of all relevant

facts/materials and had applied its mind to all the relevant

material. In every individual case, the prosecution has to

establish and satisfy the court by leading evidence that the

entire relevant facts had been placed before the sanctioning

authority and the authority had applied its mind on the same

and that the sanction had been granted in accordance with

law.

.....15/-

Judgment

189 apeal124.12

22. The Honourable Apex Court in the case of State of

Karnataka vs. Ameerjan12, 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.

23. The view in the case of State of Karnataka vs.

Ameerjan supra is the similar view expressed by this court in

the case of Anand Murlidhar Salvi vs. State of

Maharashtra13.

24. This court in the case of Vinod Savalaram

Kanadkhedkar vs. The State of Maharashtra 14 observed 12 (2007)11 SCC 273 13 2021 SCC OnLine Bom 237 14 2016 ALL MR (Cri) 3697

.....16/-

Judgment

189 apeal124.12

that absence of description of documents referred by

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.

25. Thus, application of mind on the part of sanctioning

authority is imperative. The orders granting sanction must

demonstrate that he/she should applied his/her mind while

according sanction.

26. After going through the evidence of sanctioning

authority PW2 Sunil Porwal, though he stated that he applied

his mind, the sanction order nowhere discloses that it was he

who applied mind by perusing investigating papers. The

wording used in the sanction order is that the Government of

Maharashtra having fully examined material before it, is

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 basis he came

to conclusion that the sanction has to be accorded. The

.....17/-

Judgment

189 apeal124.12

sanction order only shows that the Government of

Maharashtra has applied his mind and accorded the sanction.

The evidence further shows that the Ministry of Cooperative

Societies and Home Ministry perused the record. However,

there is no reference who actually carried out the said

exercise. The sanction order discloses that the material was

examined by the Government of Maharashtra without

specifically mentioning name of any officer who actually

undertook the exercise and recorded subjective satisfaction in

this regard on behalf of the Government of Maharashtra.

Admittedly, grant of sanction is serious exercise of powers by

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 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.

27. After going through the evidence, the sanction order

nowhere reflects who has applied mind and which documents

are considered by sanctioning authority PW2 Sunil Porwal and

.....18/-

Judgment

189 apeal124.12

on what basis the he came to conclusion that the sanction is

to be accorded to launch the prosecution against the accused.

28. Besides the issue of the sanction, learned Additional

Public Prosecutor for the State submitted that the demand

and acceptance is proved by the prosecution.

29. Learned counsel for the accused submitted that the

burden to prove accusations against the accused for offence

punishable under Sections 7 and 13(1)(b) of the said Act with

regard to the acceptance of illegal gratification lies on the

prosecution. It is submitted that the prosecution has not

examined the President of the Society. He has drawn

attention towards evidence of complainant PW1 Devidas

Ugale and shadow pancha PW3 Ramesh Jagtap. He submitted

that the evidence of the complainant shows that the notice

was issued by the accused noting flaws in the day to day

working of the society and an explanation was called. The

notice Exhibit-58 shows that the society was asked to comply

with directions and the society was further asked to restrict

members and list of members. The complainant working as

Secretary was requesting to extend time to answer the notice

which is not accepted and, therefore, the accused is

.....19/-

Judgment

189 apeal124.12

implicated. He invited my attention towards cross

examination which shows that the complainant admitted

during cross examination that for the purpose of voting

members who have obtained loan are considered as members

only. The accused gave directions to all cooperative societies

to maintain list of members. The accused further directed

that in view of Section 22 of the Maharashtra Cooperative

Societies Act to prepare list of members. The accused gave

directions to the society that only one person in family would

be member of the society. The complainant further admitted

that if directions and suggestions of the accused would have

been accepted, numbers of members would have been

reduced. Till the date of trap, list of voters was not submitted.

The accused issued a show cause notice that why the society

should not be dissolved and two days' time was given to give

explanation. The evidence further shows that on the day of

the trap, the accused first asked whether he has complied

with directions. Learned counsel for the accused submitted

that this cross examination itself is sufficient to show that as

there was no compliance of directions, the Notice was issued

why the society should not to be dissolved and, therefore, this

false report is lodged. He submitted that the evidence of the

.....20/-

Judgment

189 apeal124.12

complainant is to be appreciated in the light of cross

examination of shadow pancha PW3 Ramesh Jagtap who

specifically admitted that the accused has not demanded

money to the complainant. Whatever money was found was

in the drawer. The money was found in an envelope. The

evidence of pancha No.2 PW4 Santosh Hirde also shows that

money is seized from the drawer. The evidence of

Investigation Officer also supports contentions that the money

is seized from drawer of the table.

30. Per contra, learned Additional Public Prosecutor for the

State submitted that the evidence of complainant PW1

Devidas Ugale sufficiently shows that there was a demand for

not taking the action and the amount is accepted as

gratification amount.

31. It is now well settled that the offences under the said

Act 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 sine quo non for establishing offences under the said

Act.

.....21/-

Judgment

189 apeal124.12

32. The Honourable Apex Court in the case of

K.Shanthamma vs. The State of Telangana 15 referring the

judgment in the case of P.Satyanarayana Murthy vs.

District Inspector of Police, State of Andhra Pradesh

and anr16 held that the proof of demand of bribe by a public

servant and its acceptance by him is sine quo non for

establishing the offence under Section 7 of the said Act. The

failure of the prosecution to prove the demand for illegal

gratification would be fatal and mere recovery of the amount

from the person accused of the offences under Sections 7

and 13 of the said Act would not entail his conviction

thereunder. The Honourable Apex Court has reproduced

paragraph No.23 of its decision in the case of

P.Satyanarayana Murthy supra, which reads thus:

"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, 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

15 2022 LiveLaw (SC) 192 16 (2015)10 SCC 152

.....22/-

Judgment

189 apeal124.12

of the offence under Section 7 or 13 of the Act would not entail his conviction."

33. To prove the offence under Sections 7 and 13(1)(d) of

the said Act, 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 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

.....23/-

Judgment

189 apeal124.12

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 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.

34. In the light of the well settled law, if the evidence of

the prosecution is appreciated, it shows that the prosecution

placed reliance on the evidence of complainant PW1 Devidas

Ugale which shows that the Notice was issued to the society

and directions were given to comply and to reduce members.

The society was further asked to prepare list of members. As

per the evidence of the complainant, the entire events and

communications are disclosed to the President of the society

who is not examined by the prosecution. If the evidence of

.....24/-

Judgment

189 apeal124.12

the complainant is appreciated, in the light of the admission

given by shadow pancha PW3 Ramesh Jagtap, it shows that

the action was taken by the accused against the society by

issuing show cause notice and the society was asked to

comply within two days. The extension asked by the

complainant was not granted. The evidence of the said

shadow pancha who was along with the complainant shows

there was no demand by the accused in his presence. The

evidence of the investigating officer and pancha witnesses

shows that hands of the accused are verified and hand wash

was obtained which was not forwarded to Chemical Analyzer

as no Chemical Analyzer's Report is before the court. The

defence of the accused is that the amount was thrusted in the

drawer. An independent corroboration is not there as far as

the demand and acceptance is concerned as shadow pancha

PW3 Ramesh Jagtap has not supported the contention that

the amount is demanded and accepted. As per the

prosecution evidence, the amount was not found in the

drawer on plastic cover. The said plastic cover was also not

forwarded to the Chemical Analyzer to ascertain whether

solution is appearing on the said plastic cover. Admittedly,

before the trap, the genuineness of the demand is not verified

.....25/-

Judgment

189 apeal124.12

by the investigating agency. Usually, investigating agency

seeks to verify allegation with respect to demand of bribe

taking steps to lay a trap. In this case, it was not done and no

justification has been offered in this regard.

35. The Constitution Bench of the Honourable Apex Court

in the case of Neerja Dutta vs. State (Govt.of NCT of

Delhi)17 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 Honourable Apex Court, while

discussing expression "accept", referred the judgment in the

case of Subhash Parbat Sonvane vs. State of Gujarat 18

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 said Act, 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

17 2022 LiveLaw (SC) 1029 18 (2002)5 SCC 86

.....26/-

Judgment

189 apeal124.12

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

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

Honourable 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

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189 apeal124.12

`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) 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'.

36. The Honourable Apex Court in the case of Panalal

Damodar Rathi vs. State of Maharashtra19 has held that

there could be no doubt that the evidence of the complainant

19 (1979)4 SCC 526

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189 apeal124.12

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 have to see whether this part of the evidence of the

complainant has been corroborated. The Honourable Apex

Court held that it should corroborate to each other.

In the decision of the Honourable Apex Court in the

case of Mukhtiar Singh (since deceased) through his LR

vs. State of Punjab20 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

20 2017 SCC ONLine SC 742

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189 apeal124.12

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.

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

Kerala21, 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.

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

Maharashtra22, it has been held that the combine effect of

Sections 133 and 114, illustration (b) may be stated as

follows:

21 (1995)3 SCC 351 22 1963 Mh.L.J. (SC) 273

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189 apeal124.12

"According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."

39. Thus, in catena of decisions, it is held that complainant

himself is in the nature of accomplice and his story prima

facie suspects for which corroboration in material particulars

is necessary.

40. In the present case, learned counsel for the accused

rightly pointed out that shadow pancha PW3 Ramesh Jagtap

nowhere corroborated the evidence of complainant PW1

Devidas Ugale as to the demand. The proof of demand is sine

quo non.

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

currency notes from accused without proof of demand would

not establish an offence under Section 7 as well as Section

13(1)(d)(i)(ii) of the said Act.

42. It is held by the Honourable Apex Court in paragraph

Nos.13 and 14 in the case of Mukhtiar Singh (since

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189 apeal124.12

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.

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

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189 apeal124.12

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."

43. In the case of The State of Maharashtra vs.

Ramrao Marotrao Khawale23, 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

accused. Whereas, burden on accused is only to show

23 2017 ALL MR (Cri) 3269

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189 apeal124.12

probability and he is not required to prove facts beyond

reasonable doubt.

44. The Honourable Apex Court in the case of

Mohmoodkhan Mahboobkhan Pathan vs. State of

Maharashtra24 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

24 (1997)10 SCC 600

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189 apeal124.12

presumption of fact as envisaged in Section 114 of the

Evidence Act at may stage.

45. In the case of State of Maharashtra vs. Rashid

B.Mulani25, 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.

46. In the present case, as noted above, the evidence as

to the demand of illegal gratification is not satisfactory and

convincing. While deciding the offence under the said Act,

25 (2006)1 SCC 407

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189 apeal124.12

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 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.

47. As far as applicability of presumption is concerned, the

Honourable Apex Court in the case of Neerja 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.

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189 apeal124.12

48. As observed earlier, that prior demand by the accused

is not verified and proved by the prosecution, the subsequent

demand is concerned, the evidence of complainant PW1

Devidas Ugale is not corroborated shadow pancha PW3

Ramesh Jagtap. The circumstantial evidence as to the

acceptance that the hand wash collected of the accused is not

forwarded to the Chemical Analyzer and the chemical

Analyzer Report is not placed on record. The independent

corroboration by examining Vinod Deshmukh is also fatal to

the prosecution. The sanction is also not a valid sanction. In

absence of the valid sanction, the entire trial vitiates. The

evidence as to the demand and acceptance is not inspiring

confidence. The demand and acceptance require to be

proved which is a sine quo non for establishing the charge.

49. In the light of the above, the appeal deserves to be

allowed and, therefore, I proceed to pass following order:

ORDER

(1) The criminal appeal is allowed.

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

19.3.2012 passed by learned Additional Sessions Judge,

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189 apeal124.12

Amravati in Special (ACB) Case No.04/2005 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.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 06/03/2024 10:29:29