Vijay S/O Wasudeo Shende vs The State Of Maharashtra, Through Dy. ...
2024 Latest Caselaw 13579 Bom

Bombay High Court

Vijay S/O Wasudeo Shende vs The State Of Maharashtra, Through Dy. ... on 2 May, 2024

2024:BHC-NAG:5238




              Judgment

                                                                  223 apeal333.14

                                              1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR
                             CRIMINAL APPEAL NO.333 OF 2014

              Vijay s/o Wasudeo Shende,
              aged about 47 years, occupation : service,
              Junior Engineer (Construction Department),
              Municipal Council, Bramhapuri,
              tahsil Bramhapuri, district Chandrapur. ..... Appellant.

                                       :: V E R S U S ::

              The State of Maharashtra,
              through Dy.Superintendent of Police,
              Anti-Corruption Bureau, Chandrapur,
              tahsil and district Chandrapur.        ..... Respondent.

              ==================================
              Shri R.M.Daga, Counsel for the Appellant.
              Shri R.V.Sharma, Additional Public Prosecutor for the State.
              ==================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 12/04/2024
              PRONOUNCED ON : 02/05/2024

              JUDGMENT

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

judgment and order of conviction and sentence dated 7.5.2014

passed by learned Special Judge, Chandrapur (learned Judge of

the trial court) in Special (ACB) Case No.10/2007 whereby the

accused is convicted for offence punishable under Section 7 of the

.....2/-

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223 apeal333.14

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

to suffer rigorous imprisonment for one year and to pay fine

Rs.500/-, in default, to suffer rigorous imprisonment for three

months.

The accused is further convicted for offence punishable

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

and sentenced to suffer rigorous imprisonment for two years and

to pay fine Rs.1000/-, in default, to suffer rigorous imprisonment

for six months.

Learned Judge of the trial court directed that all sentences

shall run concurrently.

2. Brief facts of the prosecution case run as under:

Complainant Jitendra Gadiwan, is a businessman and

running a shop under name and style as "Rolling Shutters and

Engineering Workshop at Bramhapuri". He used to obtain

welding and fabrication works from the Government, Semi-

Government, and so also privately. Two months before

17.7.2006, he filled up a tender in the office of the Bramhapuri

.....3/-

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223 apeal333.14

Municipal Council for manufacturing gate of compound wall of

the Municipal Council. Accordingly, he completed the work as per

the tender on 7.7.2006 and the gate was installed. The accused,

who was Junior Engineer at the relevant time, inspected the work

and approved it and therefore, the complainant submitted his bill

of Rs.14,900/-. As per allegation, the complainant was called by

the accused saying that he helped him during the tender process,

otherwise he would not have got the said tender and demanded

Rs.2500/- for taking entry of the bill of the complainant in

M.B.Register. It is alleged that the accused told him that if he

pays the amount, he would obtain signature of the Chief Officer

and would forward the bill to the Accounts Office.

3. On 17.7.2006, the complainant again visited the office of

the accused and requested him to send the bill, but the accused

told him that unless and and until he pays the amount, he would

not process the bill. As the complainant was not desiring to pay

the amount, he approached the office of the Anti Corruption

Bureau at Chandrapur (bureau) and lodged a report on

17.6.2006.

.....4/-

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223 apeal333.14

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

panchas to remain present in the office of the bureau on

20.7.2006. Accordingly, panchas were present as well as the

complainant. The complainant narrated the incident which was

verified by panchas from the complaint. After following a due

procedure, it was decided to lay a trap. The complainant

produced four currencies of Rs.500/- denomination. A

demonstration as to phenolphthalein powder and sodium

carbonate was shown to the complainant and panchas. The

instructions were given to panchas as well as the complainant.

The solution was applied on currency notes and the amount was

handed over to the complainant to keep it in his shirt pocket.

Accordingly, a pre-trap panchanama was drawn.

5. The squad for the trap along with panchas and the

complainant proceeded to Bramhapuri. The complainant and

pancha namely Meshram proceeded towards the office of the

accused and another pancha Tilakchand Khandekar was along

with other raiding party members. In the office of the accused,

the complainant communicated with the accused whether his bill

.....5/-

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223 apeal333.14

was sent to the Account Section and the accused disclosed that

the bill is not as per quotation and he has to correct the bill and,

thereafter, the accused and the complainant went to a pan stall

and returned after some time. The complainant was told by the

accused that he has to attend a meeting and, thereafter, he would

come to his shop and he proceeded to attend the meeting and,

therefore, the complainant and pancha Meshram returned

towards the trap party.

6. The Trap Officer suspended the trap for some time and at

about 4:20 by replacing pancha Meshram, sent pancha Khandekar

along with the complainant at his shop. Accordingly, instructions

were given. At about 4:30 pm, trap party members received a

signal. Accordingly, the accused was caught. The amount was

recovered from the accused. On enquiry with the pancha, it

revealed to the Trap Officer that the accused demanded the

amount and accordingly the amount was handed over. The

amount was seized from the accused. Accordingly, a post-trap

panchanama was drawn. The officer of the bureau lodged a

.....6/-

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223 apeal333.14

report about the said incident. After obtaining sanction,

chargesheet was filed.

7. To substantiate allegations, the prosecution examined in

all five witnesses viz. Jitendra Shivshankar Gadiwan vide Exhibit-

15, the complainant (PW1); Tilakchand Khandekar vide Exhibit-

23, shadow pancha (PW2); Bandu Bagaji Meshram vide

Exhibit-.35, the pancha (PW3); Pramod Uttamrao Wankhede vide

Exhibit-36, the Sanctioning Authority (PW4), and Bhimrao More

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

8. Besides the oral evidence, the prosecution further placed

reliance on complaint Exhibit-16; seizure memo Exhibit-17, bills

Exhibits-18 and 19; pre-trap panchanama Exhibit-24; seizure

memos Exhibits-30 to 32; personal search of the accused Exhibit-

33; post-trap panchanama Exhibit-34, complaint by the accused

against Corporator Exhibits-41 to 44, Resolution for black listing

contractor Exhibit-49, Sanction Order Exhibit-37, personal search

of the complainant Exhibit-58, report Exhibit-59, First

Information Report Exhibit-61, letter to the Chemical Analyzer

Exhibit-63, and seizure memo Exhibit-68.

.....7/-

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223 apeal333.14

9. After considering the evidence adduced during the trial,

learned Judge of the trial court held the accused guilty and

convicted and sentenced him as the aforesaid.

10. I have heard learned counsel Shri R.M.Daga for the

accused and learned Additional Public Prosecutor 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.

11. Learned counsel for the accused submitted that learned

Judge of the trial court erred in convicting the accused in absence

of any cogent and reliable evidence on the point of demand and

acceptance of the alleged illegal gratification of Rs.2000/-. It is

submitted that mere possession and recovery of currency notes

from the accused without proof of demand will not bring home

the offence under Section 7 or 13(1)(d) of the said Act. It is

submitted that demand and acceptance of illegal gratification is

sine qua non to attract provisions as well as presumption under

Section 20 of the NDPS Act. A burden to prove accusations with

regard to the acceptance of illegal gratification lies on the

prosecution. As far as the evidence of complainant PW1 Jitendra

.....8/-

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223 apeal333.14

Gadiwan, the complainant (PW1), as regards the demand, is

concerned, it suffers from omissions and contradictions, which are

proved by the defence. It further reveals from the evidence of

Sanctioning Authority PW4 Pramod Wankhede that despite of

Resolution was passed not to accord the sanction, he has accorded

the sanction without application of mind. Thus, for want of valid

sanction also, the case of the prosecution fails and he prays for

acquittal of the accused.

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

accused placed reliance on following decisions:

1. Ashoka Karunakaran Panikar vs. State of Maharashtra;1

2. K.Shanthamma vs. State of Telangana2;

3. State of Punjab vs. Madan Mohan Lal Verma3, and

4. Mohan s/o Keshavrao Jayebhaye vs. The State of Maharashtra4.

13. Per contra, learned Additional Public Prosecutor for the

State submitted that the evidence of complainant PW1 Jitendra

1 2022 ALL MR (Cri) 2381 2 (2022)4 SCC 574 3 2013 ALL SCR 3051 4 2024 ALL MR (Cri) 603

.....9/-

Judgment

223 apeal333.14

Gadiwan is corroborated by shadow pancha PW2 Tilakchand

Khandekar and pancha PW3 Bandu Meshram substantiating the

prosecution case that the accused demanded illegal gratification

and accepted the amount. The amount is recovered from the

accused and no plausible explanation is put forth by the accused.

The prosecution has also proved that the sanction is as per law

and, therefore, no interference is called for in the judgment

impugned in the appeal.

14. Since question of validity of the sanction has been raised

as a primary point, it is necessary to discuss an aspect of sanction.

The sanction order was challenged on ground that the sanction

was accorded without application of mind and mechanically

despite resolution was passed by the Municipal Council not to

accord the sanction.

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

placed reliance on the evidence of Sanctioning Authority PW4

Pramod Wankhede. The sum and substance of his evidence is that

he was the Chief Officer of Municipal Council at Bramhapuri and

the accused was serving as Junior Engineer in the said Municipal

.....10/-

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223 apeal333.14

Council. He received papers of investigation from the bureau and

along with those papers a draft sanction order was sent. He has

gone through all investigating papers and found prima facie case

and accorded the sanction, which is at Exhibit-37. During his

cross examination, it came on record that he had obtained prior

approval of General Body of the Municipal Council for giving the

sanction. The General Body of the Municipal Council denied

permission. He further stated that in the General Body Meeting,

all powers were given to him by deciding that he would be

personally responsible for granting or rejecting the sanction. His

evidence further shows that the accused had given complaints

against Corporator Satish Shrivastava. An enquiry was conducted

regarding the said complaint. There was a meeting between the

Chief Officer, Association of Contractors, and the Sub Divisional

Officer. As per order dated 15.4.2006, said contractors were

black listed. Thus, attempt was made to show that as the accused

had made complaints against contractors, due to which, by

passing resolution, contractors were black listed, false complaint

is lodged against him. As far as validity of the sanction is

concerned, it is submitted that there was no approval of the

.....11/-

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223 apeal333.14

General Body to accord the sanction. Moreover, Sanctioning

Authority PW4 Pramod Wankhede has not applied his mind and

accorded the sanction. His evidence states that he has seen

papers and accorded the sanction. There is no whisper that he

accorded the sanction after application of mind. There is no

reference that which documents he had considered to accord the

sanction. Thus, his evidence sufficiently shows that on the basis

of draft sanction order, he accorded the sanction.

16. Whether sanction is valid or not and when sanction can be

called as valid, the same is settled by the various decisions of the

Honourable Apex Court as well as this court.

17. The Honourable Apex in the case of Mohd.Iqbal Ahmad

vs. State of Andhra Pradesh5 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

5 1979 AIR 677

.....12/-

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223 apeal333.14

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.

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

case of CBI vs. Ashok Kumar Agrawal6 has held that sanction lifts

the bar for prosecution and, therefore, it is not an acrimonious

exercise but a solemn and sacrosanct act which affords protection

to the government servant against frivolous prosecution. There is

an obligation on the sanctioning authority to discharge its duty to

give or withhold sanction only after having full knowledge of the

material facts of the case. The prosecution must send the entire

relevant record to the sanctioning authority including the FIR,

disclosure statements, statements of witnesses, recovery memos,

draft charge sheet and all other relevant material. It has been

further held by the Honourable Apex Court that the record so sent

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

the balance in favour of the accused and on the basis of which, 6 2014 Cri.L.J.930

.....13/-

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223 apeal333.14

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.

19. The absence of description of documents referred by

Sanctioning Authority PW4 Pramod Wankhede would show lack

of application of mind by the competent authority while according

the sanction.

.....14/-

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223 apeal333.14

20. In view of settled principles of law, it is crystal clear that

Sanctioning Authority has to apply his/her own independent mind

for generation of his/her satisfaction for sanction. The mind of

Sanctioning Authority should not be under pressure and the said

authority has to apply his/her own independent mind on the basis

of 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, Sanctioning Authority is the best person to judge as to

whether public servant concerned should receive protection under

the said Act by refusing to accord sanction for his prosecution or

not.

21. Thus, the application of mind on the part of the

sanctioning authority is imperative. It is true that sanction order

should not be an order like court orders, but it should reflect

application of mind.

22. Perusal of the sanction order shows that Sanctioning

Authority PW4 Pramod Wankhede reproduced the prosecution

case. In the sanction order, though the Sanctioning Authority

.....15/-

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223 apeal333.14

mentioned that papers of investigation of Crime No.3069/2006

were reported to the General Body of the Nagar Parishad and the

General Body of the Nagar Parishad in its General Body Meeting

passed Resolution No.6 on 29.6.2007 and conveyed its approval

for prosecution of the accused for offences constituted by the Act,

his cross examination shows that the General Body denied

permission, however, powers were given to him to decide at his

own whether sanction is to be granted or not.

23. Thus, recital of the sanction order shows that the General

Body Meeting approved that the prosecution is contrary to the

evidence adduced by Sanctioning Authority PW4 Pramod

Wankhede. Moreover, the prosecution has not produced on

record the said Resolution which would have clarified things why

the General Body denied to accord the sanction.

24. After going through the evidence of Sanctioning Authority

PW4 Pramod Wankhede, admittedly, the sanction order nowhere

reflects material on the basis of which the Sanctioning Authority

came to conclusion that the sanction is to be accorded to launch

prosecution against the accused.

.....16/-

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223 apeal333.14

25. Thus, it is imperative from the record that the sanction

accorded by Sanctioning Authority PW4 Pramod Wankhede is

without application of mind.

26. Besides the issue of the sanction, the prosecution claimed

that the accused demanded gratification amount and accepted the

same.

27. In order to prove the demand and acceptance, the

prosecution mainly placed reliance on the evidence of

complainant PW1 Jitendra Gadiwan; shadow pancha PW2

Tilakchand Khandekar, and pancha PW3 Bandu Meshram.

28. It is now well settled that 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.

29. Before averting to the evidence, it would be appropriate to

refer well settled legal position regarding proof of demand by

public servant and its acceptance.

.....17/-

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223 apeal333.14

30. The Honourable Apex Court in the case of K.Shanthamma

vs. The State of Telangana7 referring the judgment in the case of

P.Satyanarayana Murthy vs. District Inspector of Police, State of

Andhra Pradesh and anr8 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

7 2022 LiveLaw (SC) 192 8 (2015)10 SCC 152

.....18/-

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223 apeal333.14

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

31. 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 proved:

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

.....19/-

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223 apeal333.14

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

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.

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

prosecution is appreciated, it would show that the prosecution

mainly placed reliance on the evidence of complainant PW1

Jitendra Gadiwan. As per his evidence, a tender of manufacturing

of gate was allotted to him by the Nagar Parishad at Bramhapuri.

Accordingly, he installed the gate and submitted bill of

.....20/-

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223 apeal333.14

Rs.14,900/-. On 10.7.2006, he visited the accused who

supervised the work and requested to take entry of the said bill in

the M.B.Register (measurement book register) for which the

accused demanded Rs.2500/- from him. The said demand was

reiterated by the accused on 17.6.2006. As he was not desiring to

pay the amount, he approached the office of the bureau and

lodged the report. He narrated the entire procedure carried out

by the official of the bureau during pre-trap and post-trap

panchanamas. As per his evidence, he along with pancha No.1

Meshram visited the office of the accused on 20.7.2006 i.e. the

day of the trap. The accused took them on pan stall and told

them that he is having a meeting and he would visit the shop of

the complainant. This fact is disclosed by the complainant to trap

members and the trap was suspended for some time. At about

5:00 to 5:15 pm, when the complainant and another pancha

Khandekar were present in his, the accused visited the shop. The

complainant corrected the bill, as per say of the accused. It is

evidence of the complainant that at the relevant time, it was the

complainant who disclosed to the accused that amount Rs.2500/-

is along with him. On the say of the accused, he kept the money

.....21/-

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223 apeal333.14

in the file and the pre-determined signal was given. The accused

was caught and the amount was recovered from the file. During

cross examination, some material omissions brought on record to

the extent that the complainant met the accused on 19.7.2006

and disclosed to him that he would pay the amount on 20.7.2006,

were not stated by him while lodging the complaint. He admitted

during cross examination that on 20.7.2006, the accused visited

the shop for getting corrected the bill. He further admitted that

while he was preparing the bill, the accused received a phone call

on his mobile and he had gone out of the shop to talk on his

mobile. It further came in evidence that at the time of the trap,

pancha Khandekar was outside the shop. Whereas, work of

preparing the bill and communication with the accused took place

inside the shop.

33. Thus, the evidence of complainant PW1 Jitendra Gadiwan

shows that it was the complainant who disclosed to the accused

that he is having amount Rs.2500/-. On the day of the trap, when

the complainant visited his office initially, at the that time also,

there was no demand by the accused. The evidence further shows

.....22/-

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223 apeal333.14

that some contractors demanded to suspend the accused, but, the

complainant has shown his unawareness about the said fact.

34. To corroborate the version of complainant PW1 Jitendra

Gadiwan, the prosecution examined shadow pancha PW2

Tilakchand Khandekar. As far as the demand is concerned, his

evidence shows that initially, pancha Meshram accompanied the

complainant when the complainant visited the office of the

accused. However, the accused had to attend a meeting and,

therefore, there was no communication regarding the work of the

complainant and, therefore, the trap was suspended and decided

to a lay trap at 4:00 pm. Thereafter, officers of the bureau

directed him to accompany the complainant in his shop and said

Meshram will accompany raiding party members. As to the

demand, the evidence of the complainant shows that the accused

came in the shop of the complainant and told that description in

the bill is not proper and asked the complainant to prepare a fresh

bill. The complainant handed over new bill to the accused.

Thereafter, the accused said to the complainant to give amount as

per earlier demand. The accused accepted the amount by asking

.....23/-

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223 apeal333.14

the complainant to keep it in the note pad. Thereafter, the

accused was caught. The cross examination of this witness shows

that he has not heard the communication between the

complainant and the accused. He is unable to recollect whether

he was out of the shop. He also not heard that the accused

demanded the amount and the complainant kept the amount in

the note pad.

35. Another pancha is PW3 Bandu Meshram, whose evidence

also shows that when he proceeded to the office along with the

complainant, the complainant enquired about his bill and the

accused disclosed that the bill requires to be corrected. Thus, his

evidence also shows that there was no demand in his presence.

During cross examination also it came on record that the accused

told that he will verify bills and, thereafter, disclose about the

same.

36. Learned counsel for the accused submitted that from this

evidence it is crystal clear that there was no demand by the

accused, but complainant PW1 Jitendra Gadiwan himself

disclosed that he is having amount of Rs.2500/- and kept in a file.

.....24/-

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223 apeal333.14

He submitted that that there is no corroboration to the evidence

of the complainant as to the demand as the complainant has

admitted that at the time of the communication between him and

the accused, shadow pancha PW2 Tilakchand Khandekar was

outside the shop. As far as the demand in presence of pancha is

PW3 Bandu Meshram is concerned, the same is also not

corroborated. Shadow pancha PW2 Tilakchand Khandekar

specifically stated that he has not heard the communication

between the complainant and the accused. The material

omissions brought on record and proved by the defence show that

the complainant has not stated that on 19.7.2006 the accused

demanded the bribe. He has also not stated that he had told the

accused that he will give Rs.2500/-. Thus, he submitted that the

entire evidence is not sufficient to prove the demand and

acceptance.

37. As far as Trap Officer PW5 Bhimrao More is concerned, his

evidence is not the direct evidence as to the demand and

acceptance. His evidence shows that pancha No.1 has disclosed

that the accused has kept the amount in a pad. Whereas, the

.....25/-

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223 apeal333.14

evidence of complainant PW1 Jitendra Gadiwan shows that he has

kept the amount in pad on the say of the accused. The evidence

of the complainant shows when he was preparing the bill, the

accused went outside the shop as he received phone call.

38. Learned counsel for the accused submitted that thrusting

of the amount by the complainant by keeping the amount in the

file cannot be ruled out. He submitted that mere utterance of

words that whether the complainant has brought the amount

would not constitute demand of bribe. He submitted that proof of

demand and acceptance is sine qua non, which is absent in the

case.

39. To substantiate the said contentions, learned counsel for

the accused placed reliance on catena of decisions particularly in

the case of K.Shanthamma vs. State of Telangana supra. The

Honourable Apex Court in the said decision and in the case of

P.Satyanarayana Murthy vs. District Inspector of Police, State of

Andhra Pradesh and anr supra held that proof of demand is sine

qua non for establishing the offence under Section 7 of the said

Act.

.....26/-

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223 apeal333.14

40. After appreciating the evidence on record, there is no

corroboration as to the earlier demand by the accused. As far as

the demand, on the day of the trap, and the acceptance of bribe

amount is concerned, the evidence of prosecution witnesses is not

consistent, cogent and reliable one. From the evidence of

complainant PW1 Jitendra Gadiwan, it reveals that there was no

demand by the accused. The evidence of the complainant and

shadow pancha PW2 Tilakchand Khandekar is also not consistent

as to the demand and acceptance. The presence of said

Khandekar at the time of demand and acceptance itself is

doubtful.

41. The Constitution Bench of the Honourable Apex Court in

the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi) 9 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", 9 2022 LiveLaw (SC) 1029

.....27/-

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223 apeal333.14

referred the judgment in the case of Subhash Parbat Sonvane vs.

State of Gujarat10 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 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 10 (2002)5 SCC 86

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223 apeal333.14

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) 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

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223 apeal333.14

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'.

42. In the case of M.O.Shamsudhin vs. State of Kerala11, 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.

43. In the case of Bhiva Doulu Patil vs. State of Maharashtra12,

it has been held that the combine effect of Sections 133 and 114,

illustration (b) may be stated as follows:

11 (1995)3 SCC 351 12 1963 Mh.L.J. (SC) 273

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223 apeal333.14

"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."

44. When a trap is set for proving charge of corruption against

a public servant, evidence about prior demand has its own

importance. 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 probability and he is not

required to prove facts beyond reasonable doubt.

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223 apeal333.14

45. In the present case, as noted above, the evidence, as to the

demand and acceptance, is not satisfactory and convincing and

since proof of demand is sine qua non for convicting accused, in

such cases, it cannot be said that the prosecution has been

successful in proving its case beyond reasonable doubt.

46. It is also well settled that while deciding offences under

the said Act, complainant's evidence is to be scrutinized

meticulously. There could be no doubt that evidence of

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 Neeraj Dutta vs. State

(Govt.of NCT of Delhi) supra held that presumption of fact with

regard to the demand and acceptance or obtainment of an illegal

gratification may be made by a court of law by way of an

inference only when the foundational facts have been proved by

relevant oral and documentary evidence and not in the absence

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223 apeal333.14

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.

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

is not proved by the prosecution, a doubt is created as to the

demand and acceptance. The sanction accorded is also not a

valid sanction and it is without application of mind. As such, the

appeal deserves to be allowed and, therefore, I pass following

order:

ORDER

(1) The criminal appeal is allowed.

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

7.5.2014 passed by learned Special Judge, Chandrapur in Special

(ACB) Case No.10/2007 convicting and sentencing the accused is

hereby quashed and set aside.

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223 apeal333.14

(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: 03/05/2024 10:32:22