State Of Maharashtra, Through A.C.B. ... vs Sanjay S/O Vithalrao Tekade
2025 Latest Caselaw 1442 Bom

Bombay High Court

State Of Maharashtra, Through A.C.B. ... vs Sanjay S/O Vithalrao Tekade on 5 August, 2025

2025:BHC-NAG:7795




              Judgment

                                                          443 apeal475.13

                                         1

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

                         CRIMINAL APPEAL NO.475 OF 2013

              State of Maharashtra,
              through ACB, Shirkhed.             ..... Appellant.

                                 :: V E R S U S ::

              Sanjay s/o Vithalrao Tekade,
              aged about 40 years, occupation service,
              r/o Shrikrushna Colony, Chandur Bazar,
              district Amravati.                ..... Respondent.

              Shri N.B.Jawade, Additional Public Prosecutor for the
              Appellant/State.
              Shri Manoj Kariya, Counsel and Ms.Parinita Lakhani,
              Advocate for the Respondent.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 11/07/2025
              PRONOUNCED ON : 05/08/2025

              JUDGMENT

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

challenged judgment and order of acquittal dated

5.12.2012 passed by learned Additional Sessions Judge

.....2/-

Judgment

443 apeal475.13

and Special Judge, Amravati (learned Judge of the trial

court) in Special (ACB) Case No.8/2009.

2. By the said judgment impugned in the appeal, the

respondent (the accused) is acquitted of offences

punishable under Sections 7 and 13(1)(d) read with

13(2) of the Prevention of Corruption Act (the P.C.Act).

3. Brief facts of the prosecution run as under:

The accused was serving as Police Constable at

Police Station Shirkhed. Umesh Kohale (the complainant)

was prosecuted on the basis of report lodged by one

Mangesh Dhomne for committing theft of 9-10 "Tur

Bundles" vide Crime No.11/2009. The investigation of

the said crime was handed over to the accused. During

the pendency of the investigation, said complainant

Umesh Kohale and Mangesh Dhomne have settled the

dispute in the "Village Tanta Mukti Samiti" and, therefore,

.....3/-

Judgment

443 apeal475.13

settlement documents were taken to the accused, but the

accused has not accepted the same and allegedly

demanded amount Rs.2000/- from the complainant on

25.2.2009. The accused demanded the said amount for

not obtaining the PCR and only for temporary arrest.

Later on, on 21.3.2009, the accused met the complainant

at Riddhapur and demanded bribe amount Rs.4000/- on

21.3.2009. As the complainant was not willing to pay the

amount, he approached office of the Anti Corruption

Bureau (the bureau) and lodged a complaint. After

lodging of the complaint, the officers of the bureau called

two panchas. The complainant has produced 8 notes of

Rs.500/- before the officers of the bureau. The contents

of the complaint are read over by the panchas as well as

the complainant has also narrated the facts. The personal

search panchanama of the complainant was carried out.

The anthracene powder was applied to the said tainted

.....4/-

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443 apeal475.13

notes and the notes were kept in the shirt pocket of the

complainant. The complainant as well as the panchas

were instructed as to the procedure to be followed during

the trial. The complainant was instructed not to hand

over the amount unless it is demanded. Pancha No.1 was

instructed to remain with the complainant and observe

events. Accordingly, pre-trap panchanama was drawn.

After the pre-trap panchanama, the complainant along

with pancha No.1 proceeded towards Riddhapur Bus

Stand. The raiding party members followed them. The

accused came on motorcycle. There was communication

between the accused and the complainant. Thereafter,

they went at a Juice Stall. After some time, the

complainant, the accused, and pancha No.1 came out of

the Juice Center and the accused left the place on his

motorcycle without taking money.

.....5/-

Judgment

443 apeal475.13

4. On the basis of the above said investigation, after

obtaining a sanction, chargesheet was filed against the

accused. The charge was framed vide Exh.2. The

contents of the charge are denied by the accused. In

support of the prosecution case, the prosecution examined

four witnesses, they are as follows:

     PW                 Names of Witnesses                    Exh.
     Nos.                                                     Nos.

5. Besides the oral evidence, the prosecution placed

reliance on complaint Exh.9, seizure memo Exh.10, pre-

trap panchanama Exh.13, post-trap Exh.14, report

Exh.23, FIR Exh.24, and Sanction Order Exh.34.

.....6/-

Judgment

443 apeal475.13

6. After considering the evidence adduced during the

trial, learned Judge of the trial court observed that the

sanction was not proved as well as the evidence as to the

demand which is sine qua non is also not established by

the prosecution and acquitted the accused.

7. Heard learned Additional Public Prosecutor Shri

N.B.Jawade for the State and learned counsel Shri Manoj

Kariya for the accused.

8. Learned Additional Public Prosecutor, submitted

that though the trap was unsuccessful, the evidence of

complainant PW1 Umesh Kohale and pancha No.1 PW2

Bharat Chavan sufficiently shows that there was demand

by the accused. Thus, mere demand is sufficient to prove

the charges against the accused under Sections 7 and

13(1)(d) read with 13(2) of the PC Act. The evidence of

complainant PW1 Umesh Kohale is also corroborated by

.....7/-

Judgment

443 apeal475.13

and pancha No.1 PW2 Bharat Chavan. In view of that,

the order of acquittal passed by learned Judge of the trial

court is erroneous and liable to be quashed and set aside.

9. Per contra, learned counsel for the accused

supported the judgment impugned in the appeal and

submitted that proof of demand is sine qua non for

proving the charges. The prosecution has failed to prove

the charges levelled against the accused. Learned Judge

of the trial court rightly considered that aspect of the

demand is not proved by the prosecution and, therefore,

no interference is called for in the judgment impugned in

the appeal.

10. After hearing both the sides and going through the

entire evidence on record, it reveals that, admittedly,

there was no acceptance of the amount.

.....8/-

Judgment

443 apeal475.13

11. Now, only question is, whether the demand by the

accused is established by the prosecution to prove the

charges against the accused.

12. Before adverting to the merits of the matter, it is

necessary to refer scope while exercising appellate powers

especially while dealing with appeals against acquittal.

13. It is well settled that while exercising appellate

powers, especially while dealing with appeals against

acquittal, cardinal principle, to be kept in mind, is that

there is a presumption of innocence in favour of the

accused unless the accused is proved guilty. The

presumption continues and finally culminates into a fact

when the case ends in acquittal. The possibility of two

views in criminal case is not an extraordinary

phenomenon while considering appeals against the

acquittal, fact cannot be lose sight of that the trial court

.....9/-

Judgment

443 apeal475.13

has appreciated the entire evidence and reversal of an

order of acquittal is not to be based on mere existence of

a different view or mere difference of opinion. Normally,

while exercising appellate jurisdiction, it is duty of the

appellate court whether decision is correct or incorrect on

law and facts. While dealing with appeals against

acquittal, the court cannot examine the impugned

judgment only to find out whether view taken was correct

or incorrect. After re-appreciating oral and documentary

evidence, the appellate court must first decide whether

trial court's view was possible view. The appellate court

cannot overturn acquittal, and order of acquittal cannot

be reversed, only on the ground that after re-appreciating

evidence, it is of the view that guilt of the accused was

established beyond reasonable doubt.

14. By applying the above said principle, if the

evidence of the present matter is considered, admittedly,

.....10/-

Judgment

443 apeal475.13

though the prosecution relied upon the sanction, which

according to the prosecution is valid sanction, no witness

is examined to prove validity of the sanction. Since

question of validity of sanction has been raised, it is

necessary to discuss an aspect of sanction.

15. The sanction order was exhibited during the

evidence of Investigating Officer PW4 Mirza Beg. Thus,

she is not authority who had accorded the sanction.

16. Perusal of the sanction order reveals that in first

paragraph of the sanction order, designation of the

accused was mentioned and, thereafter, the prosecution

case was summarized. As far as satisfaction of the

Sanctioning Authority for granting the sanction nowhere

reflects from the sanction order. Even, the sanction order

nowhere discloses that the Sanctioning Authority has

applied its mind and, thereafter, accorded the sanction.

.....11/-

Judgment

443 apeal475.13

17. The law on the point of sanction is well settled.

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

Ahmad vs. State of Andhra Pradesh1 has held that what

Court has to see is whether or not sanctioning authority at

the time of giving sanction was aware of facts

constituting offence and applied its mind for the same

and any subsequent fact coming into existence after

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 Agrawal2 has held that 1 1979 AIR 677 2 2014 Cri.L.J.930

.....12/-

Judgment

443 apeal475.13

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 sanctioning authority including

the FIR, disclosure statements, statements of witnesses,

recovery memos, draft chargesheet 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

.....13/-

Judgment

443 apeal475.13

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.

.....14/-

Judgment

443 apeal475.13

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

Karnataka vs. Ameerjan3 has 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.

3 (2007)11 SCC 273

.....15/-

Judgment

443 apeal475.13

21. In view of the settled principles of law, it is crystal

clear that the prosecution has to establish that the

sanction is valid and accorded after application of mind.

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

P.C.Act by refusing to accord sanction for his prosecution

or not.

22. In fact, the Sanctioning Authority is the best person

to judge as to whether public servant concerned should

receive protection under P.C.Act by refusing to accord

sanction for his prosecution or not.

23. In the present case, aspect, that the sanction was

accorded after application of mind, itself is not

established by examining the Sanctioning Authority.

.....16/-

Judgment

443 apeal475.13

24. Besides the issue of the sanction, the prosecution

claimed that the accused person has demanded the

gratification amount.

25. To prove the demand and acceptance, the

prosecution mainly placed reliance on the evidence of

complainant PW1 Umesh Kohale and pancha No.1 PW2

Bharat Chavan.

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

non to establish the offence.

27. The evidence of complainant PW1 Umesh Kohale

shows that he was prosecuted for the offence of theft and

the investigation was with the accused. He settled the

dispute with the complainant who has lodged report

against him and, therefore, he had been to the police

station and the accused demanded amount Rs.2000/-

from him. As per his evidence, second demand was also

.....17/-

Judgment

443 apeal475.13

made by the accused on 21.3.2009. As he was not willing

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

and lodged the complaint. He narrated about the events

carried out in the office of the bureau during pre-trap

panchanama.

As far as the demand is concerned, his evidence

shows that he went to the police station and the accused

arrested him. At the relevant time, the accused

demanded amount Rs.2000/- for not seeking PCR and he

has paid the said amount. After some days, he received a

message that the accused has called him and he met the

accused at Riddhapur Bus Stand. At the relevant time,

the accused demanded Rs.4000/- from him and asked

him to pay within 2-3 days. As the complainant was not

desiring to pay the amount, he approached the office of

the bureau at Amravati. As to the demand on the day of

the trap, his evidence shows that as instructed by the

.....18/-

Judgment

443 apeal475.13

officer of the bureau, he along with pancha No.1 PW2

Bharat Chavan went at the Riddhapur Bus Stand whereat

the accused met him. The accused enquired with him as

to whether he brought the amount. Thereafter, they went

to the Juice Center. At the Juice Center, the accused

asked him as to the amount and, thereafter, they all came

outside the Juice Center and the accused left the place

without taking money. Thus, the evidence shows that the

amount was not accepted by the accused.

His cross examination shows that the police

informed him that the offence registered against him is

non-compoundable. His evidence further shows that the

crime was investigated by the accused and he was

arrested in the said crime and one day PCR was sought.

He has not complained against the accused that the

accused demanded Rs.2000/- and the said amount was

paid to him. He has not made complaint to the court or

.....19/-

Judgment

443 apeal475.13

superior of the accused as to the demand by the accused.

He has also admitted that he is not possessing the

currency decided to be used as tainted amount. He

further admitted that after releasing him on bail also, he

has not made any complaint against the accused.

28. To corroborate the version of complainant PW1

Umesh Kohale, the prosecution has examined pancha

No.1 PW2 Bharat Chavan. His evidence, as to the

demand on the day of the trap, shows that he was along

with the complainant. They met the accused at

Riddhapur Bus Stand. While going towards the bus

stand, one person wearing uniform met them, but he

denied that the accused made any demand to the

complainant in his presence. He has also not stated as to

the demand by the accused in the juice centre.

Subsequently, he voluntarily stated that the accused asked

whether the amount is brought. He further admitted that

.....20/-

Judgment

443 apeal475.13

it was the complainant who informed the accused that he

has brought the amount. Thus, as far as the demand is

concerned, the evidence of pancha witness nowhere

shows that in his presence the accused has made any

demand to the complainant. The evidence further shows

that it was the complainant who has informed the

accused that he has brought the amount. The cross

examination of this witness further shows that initially

when he met the accused at Riddhapur Bus Stand, the

accused has not uttered any word regarding the demand

of any money. There was no talk or transaction about

money at the Juice Center also. No amount was paid and

the trap was not successful. He further submitted that he

was informed by the officer of the bureau that one police

officer has to be apprehended and accordingly they

proceeded towards the spot.

.....21/-

Judgment

443 apeal475.13

Thus, the evidence of this witness, as to the

demand, shows that in his presence there was no demand

by the accused.

29. Admittedly, the evidence of pancha No.2 PW3

Mirza Beg is not helpful to the prosecution as far as the

demand is concerned. There was no acceptance of the

amount. His evidence is only to the extent that he was

along with raiding party members at the distance of 200

feet from complainant PW1 Umesh Kohale. There was

communication between the complainant and the accused

and, thereafter, they went at the Juice Centre. He is not

aware as to the communication between them.

Subsequently, the complainant and pancha No.1 PW2

Bharat Chavan informed that the amount was demanded.

His cross shows that the complainant was instructed to

pay the amount only demand is made. The tainted

amount was returned to the complainant. He specifically

.....22/-

Judgment

443 apeal475.13

admitted that he has no personal knowledge as to what

exactly happened on the spot.

30. Investigating Officer PW4 Nilima Araj, narrated

about all the events carried out during the pre-trap

panchanama. As far as the demand on the day of the trap

is concerned, her evidence is that she along with

complainant PW1 Umesh Kohale; pancha No.1 PW2

Bharat Chavan; and pancha No.2 PW3 Mirza Begh along

with raiding party members went to Riddhapur Bus

Stand. The complainant and pancha No.1 PW2 Bharat

Chavan proceeded towards the spot. There was

communication between the complainant and persons

came on the motorcycle. They went in the juice center

and after some time they came out. The persons came on

motorcycle left the place. Thereafter, she drawn various

panchanamas.

.....23/-

Judgment

443 apeal475.13

Her cross shows that the trap was unsuccessful.

She further admitted that after the trap, after 3 days, the

FIR was lodged. She further admitted that the tainted

amount was not seized from the accused in her presence.

The tainted amount was produced before the court to

ascertain whether any anthracene powder was applied on

it. She is not confirmed as to the genuineness of

allegations of bribe. She further admitted that nothing

was seized from the possession of the accused. It was

market day, when the trap was conducted at Riddhapur.

The accused has not accepted the tainted amount though

he met the complainant at the bus stand. She further

admitted that as the accused did not accepted the

amount, she had not caught him.

31. After appreciating the evidence on record, it is

undisputed that the trap was conducted, but the accused

has not accepted the amount.

.....24/-

Judgment

443 apeal475.13

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

non to constitute the said offence.

33. The evidence of complainant PW1 Umesh Kohale is

not corroborated as far as earlier demand is concerned.

The aspect of demand on the day of the trap is also not

corroborated by pancha No.1 PW2 Bharat Chavan. The

said pancha witness specifically stated that in his presence

there was no demand, but it was the complainant who

told the accused that he has brought the amount.

The evidence of the complainant is also to the

extent that the accused made enquiry with him whether

money is brought.

Admittedly, a stray enquiry as to whether the

money had been brought or not can by no mean

constitute demand as enjoined in law.

.....25/-

Judgment

443 apeal475.13

The evidence of the complainant is only to the

extent that the accused made query with him whether the

amount is brought.

Pancha No.1 PW2 Bharat Chavan, has not uttered

any single word as to the demand by the accused on the

day of the trap. Though he admitted during the cross

examination by learned APP that the accused enquired

whether the amount is brought, he specifically admitted

that there was no demand by the accused to pay the

amount.

34. Thus, after appreciating the evidence, the only

evidence on which the prosecution relied upon, is the

stray statement of complainant PW1 Umesh Kohale that

the accused enquired with him whether money had been

brought or not.

.....26/-

Judgment

443 apeal475.13

35. The same aspect is considered by the Hon'ble Apex

Court in the case of Mukhtiar Singh (since deceased)

through his LR vs. State of Punjab4 wherein also it is held

that statement of complainant and 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.

36. As far as the evidence of complainant PW1 Umesh

Kohale, as to the demand is concerned, admittedly, the

same is not corroborated by any evidence.

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

Maharashtra5 wherein it has been held that the combine

4 2017 SCC ONLine SC 742 5 1963 Mh.L.J. (SC) 273

.....27/-

Judgment

443 apeal475.13

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."

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

Kerala6, 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

6 (1995)3 SCC 351

.....28/-

Judgment

443 apeal475.13

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.

39. Thus, it is well settled that while deciding the

offence under P.C.Act, complainant's evidence is to be

scrutinized meticulously. There could be no doubt that

the evidence of complainant should be corroborated in

material particulars. Complainant cannot be placed on

any better footings than that of an accomplice and

corroboration in material particulars connecting accused

with crime has to be insisted upon.

40. Thus, to establish the offence, proof of demand is

sine qua non.

41. In the present case, on appreciation of the

evidence, as far as the previous demand is concerned,

.....29/-

Judgment

443 apeal475.13

there is no corroboration. The demand on the day of the

trap is also not corroborated by the evidence of pancha

No.1 PW2 Bharat Chavan. Investigating Officer PW4

Nilima Araj has admitted that she has not verified

regarding genuineness of the allegation of demand.

42. Thus, the evidence of the prosecution as to the

demand falls short to prove the charges against the

accused.

43. In view of the settled position of law, conclusive

and definite evidence is required to be proved beyond any

reasonable doubt for constituting the offence under the

P.C.Act.

44. Thus, the prosecution miserably failed to prove the

aspect of demand at the hands of the accused.

45. While dealing with appeals against acquittal, it is

well settled that cardinal principle to be kept in mind is

.....30/-

Judgment

443 apeal475.13

that there is a presumption of innocence in favour of

accused unless the accused is proved guilty.

46. In the case of N.Vijayakumar vs. State of Tamil

Nadu, reported in (2021)3 SCC 687, the Hon'ble Apex

Court has dealt with expression "erroneous" which means

"wrong", "incorrect" and observed that it will be necessary

for us to emphasise that a possible view denotes an

opinion which can exist or be formed irrespective of the

correctness or otherwise of such an opinion. A view taken

by a court lower in the hierarchical structure may be

termed as erroneous or wrong by a superior court upon a

mere disagreement. But such a conclusion of the higher

court would not take the view rendered by the

subordinate court outside the arena of a possible view.

The correctness or otherwise of any conclusion reached by

a court has to be tested on the basis of what the superior

judicial authority perceives to be the correct conclusion. A

.....31/-

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443 apeal475.13

possible view, on the other hand, denotes a conclusion

which can reasonably be arrived at regardless of the fact

where it is agreed upon or not by the higher court. The

fundamental distinction between the two situations have

to be kept in mind.

47. After appreciating the evidence on record, I do not

find any error committed by learned Judge of the trial

court. The appreciation of the evidence is on the basis of

sifting and weighing of material facts and on that ground

the appeal of the state deserves to be dismissed.

48. The judgment impugned in the appeal appears to

be legal and correct and nothing is on record to arrive at a

finding to show that the judgment impugned is perverse

or illegal. Therefore, the view taken by learned Judge of

the trial court is a possible view and no interference in the

judgment impugned in the appeal is called for.

.....32/-

Judgment

443 apeal475.13

49. In the light of the above, as the appeal is devoid of

merits, it requires to be dismissed and the same is

dismissed.

Appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

...../-