Bombay High Court
Rajesh Gangadhar Vazalwar vs State Of Mah.Thr.Acb Nagpur on 24 October, 2024
2024:BHC-NAG:12109
Judgment
309 apeals176 and 177.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.176 OF 2006
WITH
CRIMINAL APPEAL NO.177 OF 2006
CRIMINAL APPEAL NO.176 OF 2006
Shankar s/o Pilaji Ankushkar,
aged about 53 years, occupation PSI,
r/o Biloli, tahsil - Biloli,
district Nanded. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Anti Corruption Bureau,
Nagpur. ..... Respondent.
=================================
Shri A.S.Mardikar, Senior Counsel assisted by Shri
Digvijay Singh, Advocate for the Appellant.
Shri U.R.Phasate, Additional Public Prosecutor for the
Respondent/State.
=================================
CRIMINAL APPEAL NO.177 OF 2006
Rajesh Gangadhar Vazalwar,
aged about 53 years, occupation Manager/Partner,
Lake View Lodge,
r/o Ram Mandir Galli,
Mahal, Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Anti Corruption Bureau,
Nagpur. ..... Respondent.
.....2/-
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2
=================================
Shri M.D.Samel, Counsel for the Appellant.
Shri U.R.Phasate, Additional Public Prosecutor for the
Respondent/State.
=================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 17/10/2024
PRONOUNCED ON : 24/10/2024
COMMON JUDGMENT
1. By these appeals, appellant Shankar s/o Pilaji
Ankushkar and appellant Rajesh Gangadhar Vazalwar
(appellant Shankar and appellant Rajesh) have
challenged judgment and order dated 4.3.2006 passed
by learned Judge, Special Court for ACB, Nagpur
(learned Judge of the trial court) in Special Case
No.2/2001.
2. By the said judgment impugned, appellant
Shankar is convicted for offences punishable under
Sections 7 and 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988 (the said Act).
Under Section 7, he is sentenced to undergo
simple imprisonment for one year and to pay fine
.....3/-
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Rs.1000/-, in default, to undergo further simple
imprisonment for two months.
Under Section 13(2) read with 13(1)(d), he is
sentenced to undergo simple imprisonment for three
years and to pay fine Rs.1500/-, in default, to undergo
further simple imprisonment for four months.
Appellant Rajesh, is convicted for offence
punishable under Section 12 of the said Act and
sentenced to undergo simple imprisonment for one year
and to pay fine Rs.1000/-, in default, to undergo further
simple imprisonment for two months.
3. Brief facts of the prosecution run as under:
Appellant Shankar was serving as Police Sub
Inspector with Ajani Police Station, Nagpur and
appellant Rajesh was in a private service working as
Manager in "Lake View Lodge". Ghanshyam Joshi (the
complainant), allegedly, subjected a lady for sexual
assault on the promise of marriage. As the
.....4/-
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complainant's family members were against their
marriage, the complainant did not perform the marriage
with her and, therefore, she lodged a report against the
complainant on 25.4.2000. Investigation of the said
complaint was handed to appellant Shankar. As the
complainant came to know about the complaint and
investigation with appellant Shankar, he met appellant
Shankar on 2.5.2000 at Ajani Police Station. On
intervention of Inspector Deshmukh, settlement took
place between the victim and the complainant on
8.5.2000. It is alleged that when the complainant came
out from the Ajani Police Station, appellant Shankar
demanded amount Rs.10000/- from him on a pretext
that he had settled the matter. The complainant shown
his inability to pay the amount. After a negotiation, it
was decided to pay Rs.5000/-. Appellant Shankar asked
the complainant to hand over the amount by coming at
"Lake View Lodge" where he was staying. As the
complainant could not arrange the amount, on
9.5.2000, he had not visited appellant Shankar. A
.....5/-
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telephonic message was received by brother of the
complainant from appellant Shankar. Again, on
10.5.2000, the complainant received a telephonic
message from appellant Shankar to come along with the
amount. As the complainant was not willing to pay the
amount, he approached the office of the Anti Corruption
Bureau at Nagpur and lodged a complaint.
4. After receipt of the complaint, officers of the
bureau called two panchas. In presence of panchas, the
complainant narrated the incident, which was verified
by panchas. After following a due procedure, it was
decided to conduct a raid. The complainant produced
ten currencies of Rs.500/-. The demonstration as to use
and characteristics of phenolphthalein powder and
sodium carbonate was shown. The said solution was
applied on the tainted notes and the same were kept in
shirt pocket of the complainant. The complainant and
pancha No.1 Rajendra Deshmukh were instructed. As
per instructions, pancha No.1 was asked to remain with
.....6/-
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the complainant and pancha No.2 was asked to remain
with raiding party members. The complainant was
instructed to hand over the amount only on demand.
Accordingly, pre-trap panchanama was drawn. After the
pre-trap panchanama, the complainant and pancha
No.1 went to the "Lake View Lodge" and they were
followed by other raiding party members. Appellant
Shankar came on scooter after some time. During
communication, appellant Shankar took them in his
room. At the relevant time, Police Sub Inspector
Nandanwar was also present in the room. It was alleged
that, thereafter, appellant Shankar asked the
complainant whether he brought the amount, on which
the complainant replied in affirmative and appellant
Rajesh was asked to accept the same. Accordingly, the
complainant handed over the amount and gave a signal.
Appellant Rajesh was caught and the amount was
recovered from him. Appellant Shankar was also
arrested. The hand wash of the complainant as well as
appellant Rajesh was collected. The pant pocket of
.....7/-
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appellant Rajesh was also dipped into the solution and
the solution was collected. The investigating officer
obtained a sanction to launch the prosecution against
appellant Shankar. After completion of the
investigation, chargesheet was submitted.
5. During trial, the prosecution examined in all eight
witnesses namely Tanaji Dinde vide Exhibit-19 (PW1),
the officer of the bureau; Anil Dhanole vide Exhibit-21
(PW2), the Carrier; Ghanshyam Joshi vide Exhibit-23
(PW3), the complainant; Rajendra Deshmukh vide
Exhibit-38 (PW4), the Shadow Pancha; Sudhir
Mandanwar vide Exhibit-54 (PW5); Ranjit Singh Sharma
vide Exhibit-66 (PW6), the Sanctioning Authority;
Harsha Shende vide Exhibit-74 (PW7); and Diwakar
Ingle vide Exhibit-75 (PW8), the Trap Officer.
6. Besides the oral evidence, the prosecution placed
reliance on the First Information Report Exhibit-20,
personal search of the complainant Exhibit-26, medical
certificate of Harsha Shende Exhibit-28, notice to the
.....8/-
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complainant Exhibit-33, complaint Exhibit-34, notice to
Harsha and the complainant Exhibit-35, complaint by
Harsha Exhibit-37, pre-trap panchanama Exhibit-39,
seizure memos Exhibits-40, 41, and 44, map Exhibit-52,
post-trap panchanama Exhibit-53, Sanction Order
Exhibit-69, report Exhibit-82, and Chemical Analyzer's
Report Exhibit-86.
7. After considering the evidence adduced during
the trial, learned Judge of the trial court held accused
Shankar and accused Rajesh guilty and convicted and
sentenced them as the aforesaid.
8. Heard learned Senior Counsel Shri A.S.Mardikar
for appellant Shankar, learned counsel Shri M.D.Samel
for appellant Rajesh, and learned Additional Public
Prosecutor Shri U.R.Phasate for the State. I have been
taken through the entire evidence on record so also the
judgment impugned in appeals.
.....9/-
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9. Learned senior counsel submitted that the
judgment impugned in appeals is entirely relied upon
improved version of complainant PW3 Ghanshyam Joshi.
In the entire deposition of the complainant, there are
omissions. As far as the demand is concerned, the
same was not proved. There is no corroboration as far
as the earlier demand is concerned. There is no
evidence to show that appellant Shankar made phone
call to brother of the complainant on 9.5.2000 and to
the complainant on 10.5.2000. On the contrary,
evidence of PW7 Harsha Shende shows that the
complainant did not attend the police station on
10.5.2000. There is no verification as to the demand is
concerned. He further submitted the sanction accorded
is also not after application of mind. For all above these
grounds, the judgment impugned in appeals deserves to
be quashed and set aside and appellant Shankar is to
be acquitted of charges levelled against him.
.....10/-
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10. Learned counsel for appellant Rajesh submitted
that as far as offence under section 12 of the said Act is
concerned, the same relates to the abetment. The
entire evidence on record nowhere shows that appellant
Rajesh was knowing that the amount handed over to
him was a bribe amount. There was no instigation or
aiding on the part of appellant Rajesh to show abetment
at his hands. In view of that, his conviction is liable to
be set aside.
11. In support of his contentions, learned counsel for
appellant Rajesh placed reliance on following decisions:
1. Wasudeo Nathuji Ukey vs. State of
Maharashtra1;
2. State of Maharashtra vs. Dnyaneshwar
Laxman Rao Wankhede2;
3. Ghanshyam Hari Pagare vs. State of
Maharashtra3, and
4. Jayprakash Digambar Tagde and ors vs.
State of Maharashtra4.
1 2024 CRI LJ 1411
2 (2009)15 SCC 200
3 AIR OnLine 2023 Bom 125
4 AIR OnLine 2023 Bom 796
.....11/-
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12. Per contra, learned Additional Public Prosecutor
for the State submitted that no prejudice is caused to
appellant Shankar due to the sanction by incompetent
authority. There is a bar under Section 19(3) of the said
Act to raise issue regarding validity of sanction on
ground of incompetency. He further submitted that the
evidence of complainant PW3 Ghanshyam Joshi and
Shadow Pancha PW4 Rajendra Deshmukh is consistent
and corroborating as far as the demand and acceptance
is concerned. Thus, there is no merit in appeals and
appeals are liable to be dismissed.
13. In support of his contentions, learned Additional
Public Prosecutor for the State placed reliance on
decision of the Delhi High Court in the case of Mahipal
Singh vs. State5.
14. Since question of validity of the sanction has
been raised as primary point, it is necessary to discuss
an aspect of sanction.
5 MANU/DE/1993/2015
.....12/-
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15. The sanction order was challenged on two
grounds that the sanction was accorded without
application of mind and PW6 Ranjit Singh Sharma was
not the Sanctioning Authority to accord the sanction.
16. In order to prove the sanction order, the
prosecution examined Sanctioning Authority PW6 Ranjit
Singh Sharma. As per his evidence, from November
2000 to May 2001, he was working as Commissioner of
Police of Nagpur. On 29.12.2000, he received a
communication from the office of the bureau at Nagpur
along with with documents. He read papers received
and came to conclusion that it was a fit case for
granting sanction. Accordingly, he accorded the
sanction (Exhibit-69). His cross examination shows that
he is unable to recollect how many complaint were filed
by Harsha. He is also unable to tell whether the
complaint was against complainant PW3 Ghanshyam
Joshi alone or some other persons. The cross
examination further shows that he had dictated sanction
.....13/-
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order to his Personal Assistant, on the basis of draft
sanction order received by him. As far as his
competency is concerned, he denied that Additional
Director General of Police is competent person to grant
sanction for prosecution to cadre of the Assistant Sub
Inspectors.
Thus, the cross examination of the said witness
shows that he prepared the sanction order on the basis
of the draft sanction order.
17. Perusal of the sanction order reveals that
Sanctioning Authority PW6 Ranjit Singh Sharma
reproduced the entire prosecution story in the sanction
order and it is mentioned that upon carefully reading
papers of investigation, he was satisfied that there is an
adequate evidence to prosecute appellant Shankar and
he accorded the sanction.
18. Perusal of the sanction order nowhere discloses
that which papers Sanctioning Authority PW6 Ranjit
.....14/-
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Singh Sharma had considered while according the
sanction.
19. Whether sanction is valid or not and when it can
be called as valid, the same is settled by various
decisions of the Hon'ble Apex court as well as this court.
20. The Honourable Apex in the case of Mohd.Iqbal
Ahmad vs. State of Andhra Pradesh 6 has held that
what the Court has to see is whether or not the
sanctioning authority at the time of giving the sanction
was aware of the facts constituting the offence and
applied its mind for the same and any subsequent fact
coming into existence after the resolution had been
passed is wholly irrelevant. The grant of sanction is not
an idle formality or an acrimonious exercise but a
solemn and sacrosanct act which affords protection to
government servants against frivolous prosecutions
and must therefore be strictly complied with before any
6 1979 AIR 677
.....15/-
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15
prosecution can be launched against the public servant
concerned.
21. The Honourable Apex Court, in another decision,
in the case of CBI vs. Ashok Kumar Agrawal 7, 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
7 2014 Cri.L.J.930
.....16/-
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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.
.....17/-
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22. The Honourable Apex Court, in the case of State
of Karnataka vs. Ameerjan8, 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
8 (2007)11 SCC 273
.....18/-
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court in the case of Anand Murlidhar Salvi vs. State
of Maharashtra9.
24. Learned Additional Public Prosecutor for the
State submitted that a combined reading of sub-
sections (3) and (4) of Section 19 of the said Act makes
the position clear that notwithstanding anything
contained in the Code no finding, sentence and order
passed by a Special Judge shall be reversed or altered
by a Court in appeal, confirmation or revision on the
ground of the absence of, or any error, omission or
irregularity in the sanction required under sub-section
(1), unless in the opinion of that court a failure of
justice has in fact been occasioned thereby.
25. Thus, in view of Section 19(3) of the said Act,
ground of validity of sanction on incompetency is not
available to appellant Shankar.
9 2021 SCC OnLine Bom 237
.....19/-
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26. Here, in the present case, the sanction order was
not only challenged on ground of incompetency but also
it was challenged on ground of non-application of mind.
27. In view of settled principles of law, it is crystal
clear that the Sanctioning Authority has to apply
his/her own independent mind for generation of its
satisfaction for sanction. An order of sanction should
not be construed in a pedantic manner. The purpose
for which an order of sanction is required, the same is
to be borne in mind. In fact, the Sanctioning Authority
is the best person to judge as to whether public
servant concerned should receive protection under the
said Act by refusing to accord sanction for his
prosecution or not.
28. Thus, the application of mind on the part of the
Sanctioning Authority is imperative. The orders
granting sanction must demonstrate that he/she has
applied his/her mind while according sanction.
.....20/-
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29. Admittedly, grant of sanction is a serious
exercise of power by the competent authority. It has to
be apprised of all the relevant materials and on such
materials the authority has to take a conscious
decision as to whether the facts 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.
30. After going through the evidence of Sanctioning
Authority PW6 Ranjit Singh Sharma, admittedly, the
Sanction Order nowhere reflects application of mind and
which documents were considered by the Sanctioning
Authority and on what basis he came to conclusion that
the sanction is to be accorded to launch the prosecution
against appellant Shankar.
31. Besides the issue of the sanction, the
prosecution claimed that appellant Shankar demanded
gratification amount and accepted the same.
.....21/-
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32. To prove the demand and acceptance, the
prosecution mainly placed reliance on the evidence of
complainant PW3 Ghanshyam Joshi and Shadow Pancha
PW4 Rajendra Deshmukh.
As regards the complainant, his evidence shows
that PW7 Harsha Shende filed the complaint against him
and the investigation of the said complaint was with
appellant Shankar. He had been to the police station on
2.5.2000 as he was called by appellant Shankar. Before
him, he disclosed that there was no intention to cheat
the victim. On 8.5.2000, dispute was settled between
him and PW7 Harsha Shende and when he came out
from the police station, appellant Shankar demanded
Rs.10000/- from him. On a negotiation, appellant
Shankar agreed to accept amount Rs.5000/-. He further
stated that on 9.5.2000, he received a telephone call of
appellant Shankar at his residence. At the relevant
time, he had been to the District Court, Nagpur whereat
an Advocate asked him to sign on blank papers for
.....22/-
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which he denied. On the next day, he received a phone
call of appellant Shankar and appellant Shankar asked
him to come at "Lake View Lodge" along with the
amount and, therefore, he lodged the complaint. He
narrated about all events took place during the pre-trap
panchanama. As to the demand, on the day of the trap,
he stated that he along with pancha No.1 went at "Lake
View Lodge." Appellant Shankar came there on scooter
and he took them in a room and enquired with him why
he did not come to the police station and, thereafter,
appellant Shankar changed his uniform. Appellant
Shankar asked him to hand over the amount to one
Raju. Accordingly, he handed over the amount and
gave a signal.
As regards the Shadow Pancha, his evidence
shows that he was called to act as pancha. When he
reached the office of the bureau, he along with another
pancha verified contents of the complaint and,
thereafter, he narrated about events took place during
.....23/-
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pre-trap panchanama. As to the demand acceptance,
he stated that he along with complainant PW3
Ghanshyam Joshi went to "Lake View Lodge" whereat
appellant Shankar was waiting. One person came there
and demanded the bribe amount. The complainant
shown the said person to him and, thereafter, they were
taken in a room and enquired with him why the
complainant had not come on earlier date. He was also
asked why he has not signed on papers. He specifically
stated that bribe amount was not demanded at that
time. Appellant Shankar had called the complainant out
of the room. They went in gallery. Appellant Shankar
asked the complainant about him and, thereafter,
appellant Shankar told the complainant to give the
amount at counter. The evidence of the pancha witness
shows that appellant Shankar asked to give the amount
at counter when complainant informed him that he
brought the said amount. Accordingly, the amount was
handed over and signal was given. Appellant Shankar
was caught. The hand wash of appellant Rajesh and
.....24/-
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the complainant was collected. Accordingly, post-trap
panchanama was drawn.
33. It is not disputed that PW7 Harsha Shende filed
the complaint against complainant PW3 Ghanshyam
Joshi and investigation was handed over to appellant
Shankar. With intervention of another police officer, the
matter was settled.
As far as allegation of the complainant, that on
8.5.2000 the demand was made, when they came out
of the police station, the same is not substantiated by
PW7 Harsha Shende. The rest of the chief examination,
that on demand, he told appellant Shankar that he has
not committed any illegal work and, therefore, why he
should pay the amount, on that, appellant Shankar
asked him to pay the amount, is the omission. Further
part of the chief examination shows that an Advocate
met him at the Nagpur District Court and asked him to
sign on blank papers. He received a telephonic call of
.....25/-
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25
appellant Shankar and he also received a telephonic call
on 10.5.2000, the entire is the omission.
34. The cross examination of complainant PW3
Ghanshyam Joshi shows that all omissions are admitted
by him. So, these are proved omissions. He specifically
admitted that in the office of the bureau, except
introduction with panchas, no other communication took
place between him and panchas. He has not stated
before the officer of the bureau that he asked appellant
Shankar why he should pay the amount. The cross
examination shows that he did not inform the officer of
the bureau that he asked appellant Rajesh to keep the
amount. He further admitted that appellant Rajesh had
not come leaving his counter.
35. The cross examination of Shadow Pancha PW4
Rajendra Deshmukh shows that complainant PW3
Ghanshyam Joshi was not accompanied by anybody. He
did not talk with him about his marriage. As to
surroundings of "Lake View Lodge", it came on record
.....26/-
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that it is a crowded place as several shops are situated
there. The evidence of the Shadow Pancha specifically
shows that the complainant informed appellant Shankar
that he brought the amount, on which appellant Shankar
asked him to pay the same to appellant Rajesh. It
further came in his evidence that counter of appellant
Rajesh was not visible from the gallery. It further came
in his cross examination that in several cases, he acted
as pancha.
36. The prosecution has also examined PW5 Sudhir
Nandanwar, who was allegedly present in the room
when complainant PW3 Ghanshyam Joshi had been to
the room of appellant Shankar. The evidence of PW5
Sudhir Nandanwar shows that appellant Shankar took
him to bathroom and, thereafter, he changed clothes.
Appellant Shankar was talking with the complainant and
one person and appellant Shankar was asking the
complainant that why he had not gone to the court. He
got ready and immediately came out of the room. Till
.....27/-
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27
then, those persons had gone away. When he came
downstairs along with appellant Shankar, crowd was
gathered at the counter.
Thus, as to the demand by appellant Shankar, the
evidence of PW5 Sudhir Nandanwar is completely silent.
The cross examination shows that appellant
Shankar had called the complainant and gave message
to send him at Ajani Police Station. His cross
examination further shows that appellant Shankar was
saying to the complainant that he had not done good
thing by not coming to the police station. Except this
cross examination, nothing is brought on record.
37. AS per allegations, a settlement took place
between PW7 Harsha Shende and complainant PW3
Ghanshyam Joshi on 8.5.2000. Harsha Shende narrated
about her complaint and grievance. Her cross
examination shows that on 10.5.2000, appellant
Shankar called the complainant by making a telephonic
.....28/-
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call. On that day, accused Shankar had not talked with
the complainant. On 10.5.2000, though he was waiting
for the complainant in the police station, the
complainant had not come. She specifically stated that
on 8.5.2000, after a settlement, she along with the
complainant came out of the police station and
appellant Shankar and Inspector Deshmukh were sitting
in the police station. She has not stated that the
complainant was followed by appellant Shankar and any
demand was made by appellant Shankar.
38. Trap Officer PW8 Diwakar Ingle, narrated about
the trap arranged by him. Admittedly, he is not witness
as to the demand and acceptance. His evidence is only
to the extent that the amount is recovered from
appellant Rajesh. During his cross examination, the
entire omissions are brought on record, which show that
complainant PW3 Ghanshyam Joshi has not informed to
him while recording his statement that appellant
Shankar has demanded his telephone number. The
.....29/-
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29
complainant did not inform during his statement that he
told to appellant Shankar that he had not committed
any wrong and, therefore, why he should pay the
amount. The complainant also not informed that
appellant Shankar called him at 4:00 pm.. He also not
informed that appellant Shankar telephonically directed
him to attend 7th floor of the District Court. The
complainant also not stated that an Advocate met him
and asked him to sign on blank papers.
39. Thus, the entire omission are proved during the
cross examination.
The omissions as to Shadow Pancha PW4
Rajendra Deshmukh are also brought on record.
As regards appellant Rajesh, he admitted there
were no complaints against him initially.
40. PW1 Tanaji Dinde and PW2 Anil Dhanole are
formal witnesses.
.....30/-
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41. Thus, on appreciating the evidence of
complainant PW3 Ghanshyam Joshi, he has improved
his version during the evidence before the court and the
entire evidence is in the nature of omissions. As per his
allegations, on 8.5.2000, when he came out of the
police station, after settlement, appellant Shankar
approached him outside the police station and
demanded amount from him. At the relevant time, PW7
Harsha Shende was also along with him. She has not
supported the alleged allegation. She specifically
stated that when she along the complainant came out of
the police station, appellant Shankar and Inspector
Deshmukh were sitting in the Police Station.
42. Thus, as far as initial demand is concerned, there
is no corroboration to the said demand. As to phone call
by appellant Shankar, at the house of complainant PW3
Ghanshyam Joshi, which was received by his brother, is
also not supported as the brother of the complainant
was not examined.
.....31/-
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309 apeals176 and 177.06
31
43. In the case of Panalal Damodar Rathi vs.
State of Maharashtra10, the Hon'ble apex Court
observed that a 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
conversation between him and accused is not
corroborated by anybody.
44. 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
10 (1979)4 SCC 526
11 (1995)3 SCC 351
.....32/-
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309 apeals176 and 177.06
32
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.
45. In the case of Bhiva Doulu Patil vs. State of
Maharashtra12 wherein it has been held that the
combine effect of Sections 133 and 114, illustration (b)
may be stated as follows:
"According to the former, which is a rule of
law, an accomplice is competent to give
evidence and according to the latter which is
a rule of practice it is almost always unsafe
to convict upon his testimony alone.
Therefore though the conviction of an
accused on the testimony of an accomplice
cannot be said to be illegal yet the Courts
will, as a matter of practice, not accept the
evidence of such a witness without
corroboration in material particulars."
46. Insofar as the demand on the day of trap is
concerned, it is also not corroborated by Shadow Pancha
PW4 Rajendra Deshmukh who specifically stated in the
12 1963 Mh.L.J. (SC) 273
.....33/-
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309 apeals176 and 177.06
33
chief examination itself that it was complainant PW3
Ghanshyam Joshi who informed appellant Shankar that
he brought the amount, on which appellant Shankar
asked him to give it to appellant Rajesh.
47. Thus, the demand on the day of the trap is also
not corroborated by Shadow Pancha PW4 Rajendra
Deshmukh.
48. It is well settled that proof of demand is sine qua
non to prove charge. A stray statement in absence of
any other cogent evidence will not amount to demand
to constitute an offence.
49. In the case of Mukhtiar Singh (since
deceased) through his LR vs. State of Punjab 13, it
is held that statement of complainant and inspector,
the shadow witness in isolation that the accused had
enquired as to whether money had been brought or
not, can by no mean constitute demand as enjoined in
law. Such a stray query ipso facto in absence of any
13 2017 SCC ONLine SC 742
.....34/-
Judgment
309 apeals176 and 177.06
34
other cogent and persuasive evidence on record
cannot amount to a demand to be a constituent of the
offence.
50. Thus, the evidence of complainant PW3
Ghanshyam Joshi and Shadow Pancha PW4 Rajendra
Deshmukh, on aspect of the demand, on the day of the
trap, is not corroborated. The evidence as to the earlier
demand, which according to the complainant, on
8.5.2000, when he along with PW7 Harsha Shende came
out of the police station, made by appellant Shankar, is
also not corroborated PW7 Harsha Shende as her
evidence specifically shows that at the relevant time
appellant Shankar was inside the police station.
51. Before laying the trap, the Investigating Officer
has not verified genuineness of allegations as to the
demand by appellant Shankar.
.....35/-
Judgment
309 apeals176 and 177.06
35
52. The evidence of complainant PW3 Ghanshyam
Joshi is entirely in the nature of improvement and these
omissions are proved by the defence.
53. When a person is charged with an offence of
abetting commission of offence, burden is upon
prosecution to prove the same intention of the abettor
as the main accused was having. The evidence is
absolutely lacking in this case. What is apparent is that
a person who is accused of abetment of commission of
offence may accept something for and on behalf of the
main accused in good faith without having an
apprehension that the amount accepting is really a
bribe amount and, therefore, it is necessary for the
prosecution to establish that the abettor has shared the
same intention as the main accused, which is absent
here.
54. It is well settled that mere possession and
recovery of currency notes from appellant Rajesh would
.....36/-
Judgment
309 apeals176 and 177.06
36
not establish an offence under Section 12 of the said
Act.
55. As observed earlier, the evidence of demand by
appellant Shankar is not corroborated.
56. The Hon'ble Apex Court, in the case of Jagtar
Singh vs. State of Punjab14 also, by considering
the judgment of the Constitution Bench in the case of
Neeraj Dutta vs. State (Govt. of NCT of Delhi) 15
summarized discussion and reproduced paragraph
No.74, which is as under:
"74. What emerges from the aforesaid
discussion is summarized as under:
(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 Sections and 13(1)(d)(i)
and (ii) of the Act.
(b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the
14 2023 SCC OnLine SC 320
15 2023 SCC OnLine SC 280
.....37/-
Judgment
309 apeals176 and 177.06
37
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.
(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.
(d) In order to prove the fact in issue, namely,
the demand and acceptance of Criminal Appeal
No.1669 of 2009 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 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
.....38/-
Judgment
309 apeals176 and 177.06
38
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 Criminal
Appeal No.1669 of 2009 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.
(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
.....39/-
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309 apeals176 and 177.06
39
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.
(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 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.
(g) In so far 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 Criminal Appeal No.1669 of
2009 presumption is also subject to rebuttal.
Section 20 does not apply to Section 13(1)(d)
(i) and (ii) of the Act.
.....40/-
Judgment
309 apeals176 and 177.06
40
(h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in point
(e) as the former is a mandatory presumption
while the latter is discretionary in nature."
57. The Constitution Bench of the Hon'ble Apex
Court in the case of Neeraj Dutta supra 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 Gujarat16 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
16 (2002)5 SCC 86
.....41/-
Judgment
309 apeals176 and 177.06
41
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
circumstances surrounding the transaction itself
.....42/-
Judgment
309 apeals176 and 177.06
42
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
.....43/-
Judgment
309 apeals176 and 177.06
43
(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'.
58. Thus, it is well settled that to prove offences
under Sections 7 and 13(1)(d) of the said Act, proof
of demand is sine qua non. As far as applicability of
presumption is concerned, it would be attracted 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
.....44/-
Judgment
309 apeals176 and 177.06
44
or not. Of course, a presumption of fact is subject to
rebuttal by the accused and in the absence of
rebuttal presumption stands.
59. In the instant case, as observed earlier, prior
demand by appellant Shankar is not proved by the
prosecution. There is no independent corroboration as
to the proof of demand. Since proof of demand is sine
qua non for convicting accused in such case, it cannot
be said that prosecution has been successful in proving
its case beyond reasonable doubt. The sanction
accorded is without application of mind and, therefore,
it is not a valid sanction. The evidence as to the
abetment by appellant Rajesh is also not satisfactory to
hold him guilty.
60. In the light of the above discussion, both appeals
succeed and deserve to be allowed, as per order below:
ORDER
(1) The Criminal Appeals are allowed.
.....45/-
Judgment
309 apeals176 and 177.06
(2) The judgment and order dated 4.3.2006 passed by
learned Judge, Special Court for ACB, Nagpur in Special
Case No.2/2001 is hereby quashed and set aside.
(3) Appellant Shankar and appellant Rajesh are
acquitted of offences for which they were convicted and
sentenced.
Appeals stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 25/10/2024 16:08:10
