Ramesh S/O Babulal Chaphale (In Jail) vs State Of Maharashtra, Thr. ...
2024 Latest Caselaw 26619 Bom

Bombay High Court

Ramesh S/O Babulal Chaphale (In Jail) vs State Of Maharashtra, Thr. ... on 25 October, 2024

2024:BHC-NAG:12137




              Judgment

                                                         311 apeal229.16

                                        1

                   IN THE HIGH COURT OF JUDICATURE AT
                     BOMBAY, NAGPUR BENCH, NAGPUR.
                      CRIMINAL APPEAL NO.229 OF 2016

              Ramesh s/o Babulal Chaphale,
              aged about 46 years,
              occupation : Asst. Junior
              Engineer, r/o Master Colony,
              Civil Lines, Gondia, tahsil and
              district Gondia.                ..... Appellant.

                                :: V E R S U S ::

              State of Maharashtra,
              through Anti Corruption Bureau,
              Gondia, District Gondia.      ..... Respondent.

              ================================
              Shri Yash Bhelande, Advocate h/f Shri S.P.Bhandarkar,
              Counsel for the Appellant.
              Shri C.A.Lokhande, Additional Public Prosecutor for
              the Respondent/State.
              ================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 17/10/2024
              PRONOUNCED ON : 25/10/2024

              JUDGMENT

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

challenged judgment and order dated 23.6.2016

passed by learned Special Judge (learned Judge of the

trial court), Gondia in Special (ACB) Case No.5/2012.

.....2/-

Judgment

311 apeal229.16

2. By the said judgment impugned, the accused is

convicted for offences punishable under Sections 7

and 13(1)(d) of the Prevention of Corruption Act,

1988 (the said Act).

Under Section 7, he is sentenced to undergo

rigorous imprisonment for five years and to pay fine

Rs.5000/-, in default, to undergo simple

imprisonment for two months.

Under Section 13(1)(d), he is sentenced to

undergo rigorous imprisonment for five years and to

pay fine Rs.5000/-, in default, to undergo simple

imprisonment for two months.

3. Brief facts of the prosecution case run as

under:

In the year 2011, the accused was serving as

Assistant Junior Engineer at Amgaon Panchayat

Samiti. Complainant Kesharbai Jagdish Dongre

applied for financial aid under a Scheme of "Indira

.....3/-

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311 apeal229.16

Avas Yojna" for constructing house and amount

Rs.43,000/- was sanctioned to her. Out of the same

amount, she received amount Rs.32,000/- and

Rs.11,000/- was remained to be received and,

therefore, she approached the office of Amgaon

Panchayat Samiti for getting amount Rs.11,000/-. It

was alleged that the accused demanded Rs.500/- as

bribe for disbursing and issuing cheque of

Rs.11,000/- and, therefore, she approached the office

of the Anti Corruption Bureau (bureau) at Gondia 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 a currency note of Rs.500/- denomination

before officers of the bureau. The demonstration as

to use and characteristics of phenolphthalein powder

.....4/-

Judgment

311 apeal229.16

and sodium carbonate was shown. The said solution

was applied on the tainted note and the same was

kept in purse of the Complainant. The Complainant

and pancha No.1 were instructed. As per

instructions, the Complainant was asked to hand over

the amount only on demand. Whereas, pancha No.1

was instructed to stay along with the Complainant

and pancha No.2 was instructed to remain with

raiding party members. The Complainant was further

instructed to give a signal after acceptance of the

amount. Accordingly, pre-trap panchanama was

drawn. Subsequent to the pre-trap panchanama, the

Complainant and pancha No.1 entered into the office

of the Panchayat Samiti and at the relevant time, the

accused met them near a channel gate. The

Complainant enquired about her work. At the

relevant time, the accused demanded the amount.

Accordingly, the Complainant took out the amount

from her purse and handed over the same to the

accused. As decided, the Complainant gave a signal

.....5/-

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311 apeal229.16

to raiding party members. The officers of the bureau

immediately caught the accused and the amount was

recovered from him. The hand wash of the

Complainant as well as the accused was collected.

The investigating officer obtained a sanction to

launch prosecution against the accused.

Incriminating articles were sent to chemical analysis.

After completion of the investigation, chargesheet

was submitted against the accused.

5. During trial, the prosecution examined in all

four witnesses namely Dhanraj s/o Chunnilal Yede

vide Exh.8 (PW1), the Shadow Pancha; Kesharbai w/o

Jagdish Dongre vide Exh.19 (PW2), the Complainant;

Yashwant Wasudeo Gedam vide Exh.20 (PW3), the

Sanctioning Authority; and Devidas Bhagwan Ilamkar

vide Exh.23 (PW4), the Trap Officer.

6. Besides the oral evidence, the prosecution

placed reliance on the complaint Exh.9, pre-trap

panchanama Exh.10, post-trap panchanama Exh.11,

.....6/-

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311 apeal229.16

map Exh.12, seizure memos Exhs.13, 15, and 16,

personal search panchanama of the Complainant

Exh.18, Sanction Order Exh.21, report Exh.24, and

First Information Report Exh.25.

7. In support of the defence, the accused

examined Prakash Baburao Raut vide Exh.41 (DW1).

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.

9. Heard learned Advocate Shri Yash Bhelande h/f

learned counsel Shri S.P.Bhandarkar for the accused

and learned Additional Public Prosecutor Shri

C.A.Lokhande for the State. I have been taken

through the entire evidence on record so also the

judgment impugned in the appeal.

10. Learned counsel for the accused submitted that

the prosecution placed reliance on the evidence of

.....7/-

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311 apeal229.16

Shadow Pancha PW1 Dhanraj Yede and Complainant

PW2 Kesharbai Dongre to prove the demand and

acceptance.

As far as the Complainant is concerned, she

has not supported the prosecution case. Her

contention is corroborated by DW1 Prakash Raut.

The evidence of the Shadow Pancha is also not

sufficient to prove the demand as well as the

acceptance.

As far as the previous demand is concerned,

there is no corroboration as the Complainant

specifically stated that the demand was made to her

husband who is not examined.

There is no verification as to the demand. The

sanction is also not accorded after application of

mind.

For all above these grounds, the judgment

impugned in the appeal deserves to be quashed and

.....8/-

Judgment

311 apeal229.16

set aside and the accused is to be acquitted of

charges levelled against him.

11. In support of his contentions, learned counsel

for the accused placed reliance on following

decisions:

1. Dilip Jagannath Puri vs. State of Maharashtra1;

2. Mohan Bhaiyyalal Shrivastava vs. The State of Maharashtra2;

2. Onkar Tukaram Ramteke vs. State of Maharashtra3;

3. Banarsi Dass vs. State of Maharashtra4;

4. Uttam s/o Ramaji Shere vs. State of Maharashtra, through ACB, Akola5;

5. Daulat Arjun Doifode and ors vs. State of Maharashtra6, and

6. Criminal Appeal No.447/2012 (Bhaurao s/o Wasudev Chauhan vs. State of Maharashtra) decided by this court on 24.1.2024.

1 2023(2) AIR Bom.R (Cri.) 2 2023(3) Bom.C.R. (cri.) 913 3 2022(4) Mh.L.J. (Cri.) 214 4 2010(4) SCC 450 5 2018(2) AIR Bom.R (Cri.) 108 6 Law Finder Doc Id # 1678702

.....9/-

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311 apeal229.16

12. Per contra, learned Additional Public Prosecutor

for the State submitted that the trap was successful.

There is no cross examination as far as the

acceptance is concerned. Thus, the evidence as to

the demand and acceptance remained unchallenged.

The sanction is also accorded after application of

mind. There is no merit in the appeal and the appeal

deserves to be dismissed.

13. Since question of validity of the sanction has

been raised as primary point, it is necessary to

discuss an aspect of sanction.

14. The Sanction Order was challenged on ground

that it was accorded without application of mind.

15. In order to prove the Sanction Order, the

prosecution examined Sanctioning Authority PW3

Yashwant Gedam, who testified that in the year 2012

he was Chief Executive Officer of Zilla Parishad at

Gondia. He received a requisition from the office of

.....10/-

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311 apeal229.16

the bureau for securing sanction to launch

prosecution against the accused. The accused was

serving as Junior Engineer and was attached to Block

Development Office at Amgaon Panchayat Samiti. On

going through documents, he was convinced that

circumstances are fit to grant sanction. Accordingly,

he accorded the sanction. His cross examination

shows that at the material time, he personally did not

collect any information as to whether the accused

was given any charge of Khursipartola Circle Region.

He further admitted that the house in "Gharkul Yojna"

was required to be constructed within a period of six

months. He does not remember whether the house

of the Complainant was constructed within six

months. He specifically admitted that the accused

was not disbursement authority to issue any cheque

under his signature to beneficiary of "Gharkul Yojna".

He further admitted that he received Sanction Order

from the office of the Deputy Chief Executive Officer

and due to which, his counter signature is below his

.....11/-

Judgment

311 apeal229.16

signature. He further admitted that after verifying

counter signatures of those officials, he endorsed his

signature on Exh.21.

16. On the basis of the cross examination of

Sanctioning Authority PW3 Yashwant Gedam, learned

counsel for the accused submitted that this cross

examination sufficiently shows non-application of

mind of the Sanctioning Authority. The Sanction

Order shows that the entire prosecution story is

reproduced and it is mentioned that on carefully

reading papers of investigation and after carefully

evaluating the evidence, he was satisfied that there

is an adequate evidence to prosecute the accused

and he accorded the sanction.

17. 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.

.....12/-

Judgment

311 apeal229.16

18. The Hon'ble Apex in the case of Mohd.Iqbal

Ahmad vs. State of Andhra Pradesh 7 has held

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

Sanctioning Authority at the time of giving the

sanction was aware of the facts constituting the

offence and applied its mind for the same and any

subsequent fact coming into existence after the

resolution had been passed is wholly irrelevant. The

grant of sanction is not an idle formality or an

acrimonious exercise but a solemn and sacrosanct

act which affords protection to government servants

against frivolous prosecutions and must therefore be

strictly complied with before any prosecution can be

launched against the public servant concerned.

19. The Hon'ble Apex Court, in another decision, in

the case of CBI vs. Ashok Kumar Agrawal8, has

held that sanction lifts the bar for prosecution and,

therefore, it is not an acrimonious exercise but a

7 1979 AIR 677 8 2014 Cri.L.J.930

.....13/-

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311 apeal229.16

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,

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

.....14/-

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311 apeal229.16

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.

20. The Hon'ble Apex Court, in the case of State

of Karnataka vs. Ameerjan 9, 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. 9 (2007)11 SCC 273

.....15/-

Judgment

311 apeal229.16

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.

21. 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 Maharashtra10.

22. In the present case, the Sanction Order was

challenged on ground of non-application of mind.

23. In view of settled principles of law, it is crystal

clear that the Sanctioning Authority has to apply

10 2021 SCC OnLine Bom 237

.....16/-

Judgment

311 apeal229.16

his/her own independent mind for generation of

his/her 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.

24. 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.

25. 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 facts would show commission

of offence under relevant provisions. No doubt,

.....17/-

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311 apeal229.16

elaborate discussion is not required, however,

decision making on relevant materials should be

reflected in order.

26. After going through the evidence of Sanctioning

Authority PW3 Yashwant Gedam, his cross

examination shows that the Sanction Order was

prepared by the the Deputy Chief Executive Officer

and he merely signed on it. Moreover, 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

prosecution against the accused.

27. Besides the issue of the sanction, the

prosecution claimed that the accused demanded

gratification amount and accepted the same.

28. To prove the demand and acceptance, main

reliance on which the prosecution placed, is the

.....18/-

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311 apeal229.16

evidence of Shadow Pancha PW1 Dhanraj Yede and

Complainant PW2 Kesharbai Dongre.

As regards the Complainant, her evidence is

that she sought a financial aid under Scheme of

"Indira Awas Yojna" for construction of her house and

she received amount Rs.32,000/-. Remaining amount

Rs.11,000/- was not received and, therefore, her

husband approached the office of the Panchayat

Samiti. At the relevant time, one babu (clerk)

demanded amount Rs.500/- from her husband. At

the relevant time, her husband was working with one

Hemraj Patil and her husband disclosed about the

said demand to said Hemraj Patil. Said Hemraj Patil

took them at Gondia in one office at Balaghat Road

for giving report. It was Hemraj Patil who approached

the concerned officer in the office and her signatures

were obtained. Her evidence further discloses that

they were taken to Amgaon and at the relevant time,

one person was with her. The officer gave her

.....19/-

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311 apeal229.16

Rs.500/- and asked her to give it to the clerk of

Panchayat Samiti. On the way, she met Prakash Raut

and she asked said Prakash Raut to hand over the

amount to clerk of Panchayat Samiti and, thereafter,

she halted near a godown in the premises of

Panchayat Samiti. Her evidence further discloses

that she never approached the accused in his office.

She denied as to the demand by the accused for

handing over the cheque.

Thus, it appears that she left loyalty towards

the prosecution. Though she was cross examined at

length by learned APP, nothing transpired from the

said cross examination.

As far as cross examination on behalf of the

accused is concerned, she admitted that she already

received amount Rs.32,000/-. She further admitted

that she had no occasion to visit the office of

Panchayat Samiti for submitting and processing of

her application. All formalities for getting grant were

.....20/-

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311 apeal229.16

done by her husband. She further admitted that her

husband never informed her that the concerned clerk

was demanding Rs.500/-. She further admitted that

it was Hemraj Patil who asked her to come along with

him. Necessary conversation was between Hemraj

Patil and officers of the bureau and she merely signed

on it. Her cross examination shows that at a pan

kiosk, she was given a note of Rs.500/- and she

handed over the same to Prakash Raut to hand over

the same to the concerned clerk.

29. Thus, as far as the demand and acceptance is

concerned, Complainant PW2 Kesharbai Dongre has

not supported the prosecution case. Her contention,

that amount was handed over to DW1 Prakash Raut

and DW1 Prakash Raut handed over the same to the

accused, is also supported by DW1 Prakash Raut vide

Exh.41, which states that the Complainant gave him

currency of Rs.500/- and asked him to give the same

to concerned clerk one Dhanvijay. Said Dhanvijay did

.....21/-

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311 apeal229.16

not accept the amount and, therefore, he put the

currency note in the pant pocket of left side of the

accused.

30. Besides the evidence of Complainant PW2

Kesharbai Dongre, the prosecution placed reliance on

the evidence of Shadow Pancha PW1 Dhanraj Yede.

As per his evidence, he acted as pancha and verified

contents of the complaint as well as heard narration

of the Complainant. He also narrated about all

events took place during pre-trap panchanama. As to

the demand and acceptance, he stated that he along

with the Complainant went in the office of the

Panchayat Samiti and when they entered the said

office, the accused met them at a channel gate . The

Complainant asked about her work and the accused

demanded the amount and the Complainant took out

the amount from her purse and handed over the

same. After getting a signal, raiding party members

caught the accused. The amount was recovered from

.....22/-

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311 apeal229.16

the accused. The hand wash of the Complainant and

the accused was collected.

31. The cross examination of Shadow Pancha PW1

Dhanraj Yede shows that he was instructed to give a

signal after acceptance of the amount. He also

admitted that geographical condition of the spot of

the incident. The presence of other persons in front

of the office of the accused was also admitted. He

admitted that they were at the spot of the incident

for about ten minutes.

Thus the entire cross examination shows that

the spot of the incident was surrounded by other

buildings and in front of the office, other persons

were also present there.

32. Learned counsel for the accused submitted that

there was no verification of the demand before laying

the trap. The Complainant has not supported the

prosecution case. Thus, previous demand is not

.....23/-

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311 apeal229.16

proved and stray statement, that the accused

demanded the amount, is not sufficient to prove

aspect of demand and acceptance.

33. The prosecution also adduced the evidence of

Trap Officer PW4 Devidas Ilamkar. He narrated about

the investigation carried out by him. As far as his

evidence is concerned, the same is to the extent that

after receipt of the signal, the accused was caught

and the amount was recovered from him. His cross

examination shows that the Complainant was from

rural area, but she was not illiterate. He also

admitted that there was an open ground in front of

the office of the accused. He further admitted that

the solution was not pasted on the currency note, but

it was sprinkled.

Thus, his evidence is only to the extent of

recovery of the amount from the accused.

.....24/-

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311 apeal229.16

34. Learned counsel for the accused also invited

my attention to the cross examination of Sanctioning

Authority PW3 Yashwant Gedam, which shows that

the accused was not concerned with disbursing of the

amount to Complainant PW2 Kesharbai Dongre under

his signature to beneficiary of "Gharkul Yojna". He

submitted that this admission sufficiently shows that

the accused was not concerned with the work of the

Complainant. So, no question arises as to the

demand by the accused. Admittedly, as per the

evidence of the Complainant, the demand was made

to her husband, who is not examined by the

prosecution. Thus, there is no corroboration as to the

previous demand, which is required.

35. Learned counsel for the accused placed

reliance on the decision in the case of Dilip

Jagannath Puri supra wherein this court considered

that the talathi had no power to delete entry in 7/12

extract and the Sanctioning Authority admitted that

.....25/-

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311 apeal229.16

the same version of Complainant cannot be taken as

a gospel truth.

He further placed reliance on the decision in

the case of Mohan Bhaiyyalal Shrivastava supra

wherein it is considered that complainant left loyalty

towards the prosecution and while considering

evidence of prosecution, it is necessary to bear in

mind importance of evidence of prior demand which

if trustworthy makes the trap a legitimate to

eradicate corruption otherwise it could be an

illegitimate trap.

He further placed reliance on the decision in

the case of Onkar Tukaram Ramteke supra

wherein it is that demand of illegal gratification is

sine qua non for constituting an offence under the

said Act. Mere recovery of tainted amount is not

sufficient to convict accused when substantive

evidence in the case is not reliable.

.....26/-

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311 apeal229.16

He further placed reliance on the decision in

the case of Banarsi Dass supra wherein the Hon'ble

Apex court held that mere recovery by itself cannot

be prove the charge of prosecution against the

accused in the absence of any evidence to prove

payment of bribe or to show that the accused

voluntarily accepted the money.

He further placed reliance on the decision in

the case of Uttam s/o Ramaji Shere supra wherein

aspect of complainant turning hostile is considered

and conviction was set aside.

36. As far as the earlier demand is concerned, as

Complainant PW2 Kesharbai Dongre left loyalty

towards the prosecution, there is no other material to

hold that the accused demanded the amount and

accepted the same. The same allegation is to be

considered in the light of fact that Sanctioning

Authority PW3 Yashwant Gedam specifically admitted

that the accused was not disbursing authority to

.....27/-

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311 apeal229.16

issue any check under his signature to beneficiary of

"Gharkul Yojna".

37. Admittedly, the complaint was lodged on

21.9.2011. As per allegations in the complaint, prior

to four days of lodging of the complaint, Complainant

PW2 Kesharbai Dongre had been to the office of the

Panchayat Samiti and the demand was made to her

by the accused. The investigating officer stated that

during post-trap panchanama, he seized relevant

papers. The note-sheet prepared in the office of the

Panchayat Samiti shows that there is an endorsement

dated 10.7.2009 that the Complainant completed the

work of construction of house and installment of

Rs.10,000/- is to be paid to her. Accordingly, amount

Rs.10,000/- was paid to her. Second installment was

paid to her on 21.9.2011 and as to the third

installment, there is an endorsement that amount

Rs.11,149/- is to be disbursed to the Complainant.

.....28/-

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311 apeal229.16

Thus, the document on record shows that final

installment was paid to her prior to lodging of the

complaint. If this document is taken into consideration,

admittedly, on the date of the demand, no work was

pending with the accused and then question as to the

demand by the accused does not arise. The

disbursement letter (avuqnku forj.k i=d) shows that prior

to the trap, the amount of the last installment was

already paid to her.

38. As observed earlier, that as per the evidence of

Complainant PW2 Kesharbai Dongre, the demand was

made to her husband, her husband was not examined.

On the day of the trap, presence of several persons in

front of the office of the accused is admitted by

Shadow Pancha PW1 Dhanraj Yede. No independent

witness is examined.

39. It is well settled that proof of demand is sine qua

non to prove charge. A stray statement, in absence of

.....29/-

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311 apeal229.16

any other cogent evidence, will not amount to demand

to constitute an offence.

40. In the case of Mukhtiar Singh (since

deceased) through his LR vs. State of Punjab 11, 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

other cogent and persuasive evidence on record

cannot amount to a demand to be a constituent of the

offence.

41. The Hon'ble Apex Court, in the case of Jagtar

Singh vs. State of Punjab12 also, by considering the

judgment of the Constitution Bench in the case of

Neeraj Dutta vs. State (Govt. of NCT of Delhi) 13

summarized discussion and reproduced paragraph

No.74, which is as under:

11 2017 SCC ONLine SC 742 12 2023 SCC OnLine SC 320 13 2023 SCC OnLine SC 280

.....30/-

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311 apeal229.16

"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 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

.....31/-

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311 apeal229.16

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 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,

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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 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

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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.

(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."

42. 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 Gujarat14 observed that mere 14 (2002)5 SCC 86

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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

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'consent' can be established not only by leading

evidence of prior agreement but also from the

circumstances surrounding the transaction itself

without proof of such prior agreement. If an

acquaintance of a public servant in expectation and

with the hope that in future, if need be, he would be

able to get some official favour from him, voluntarily

offers any gratification and if the public servant

willingly takes or receives such gratification it would

certainly amount to `acceptance' and, therefore, it

cannot be said that as an abstract proposition of law,

that without a prior demand there cannot be

`acceptance'. The position will however, be different

so far as an offence under Section 5(1)(d) read with

Section 5(2) of the 1947 Act is concerned. Under the

said Sections, the prosecution has to prove that the

accused `obtained' the valuable thing or pecuniary

advantage by corrupt or illegal means or by otherwise

abusing his position as a public servant and that too

without the aid of the statutory presumption under

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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'.

43. 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 foundational facts have been proved by relevant

oral and documentary evidence and not in absence

thereof. On the basis of material on record, the Court

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has discretion to raise a presumption of fact while

considering whether fact of demand has been proved

by the prosecution or not. Of course, a presumption of

fact is subject to rebuttal by accused and in absence of

rebuttal, presumption stands.

44. In the instant case, as observed earlier, prior

demand by the accused is not proved by the

prosecution. Complainant PW2 Kesharbai Dongre has

not supported the prosecution case. The exact

communication between the Complainant is not stated

by Shadow Pancha PW1 Dhanraj Yede. It is also not

reproduced in the post-trap panchanama. There is no

independent corroboration as to the proof of demand.

Since proof of demand is sine qua non for convicting

the accused in such cases, it cannot be said that the

prosecution has been successful in proving its case

beyond reasonable doubt. The sanction accorded is

without application of mind and, therefore, it is not a

valid sanction.

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45. In the light of the above discussion, the appeal

succeeds and deserves to be allowed, as per order

below:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 23.6.2016 passed by

learned Special Judge, Gondia in Special (ACB) Case

No.5/2012 is hereby quashed and set aside.

(3) The accused is acquitted of offences for which he

was convicted and sentenced.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 25/10/2024 16:52:28