[Cites 21, Cited by 0]
Bombay High Court
Sudhakar Haribhau Gavade vs The State Of Maharashtra on 15 December, 2025
2025:BHC-AUG:35082
*1* apeal467a475a478o06 ACB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.469 OF 2006
Sudhakar s/o Bhausaheb Gavade
Since deceased through his LRs:
(Amended & LRs. added as per order
dated 15/01/2021 passed by this Court
in Criminal Application No.2363/2020)
1. Smt. Manorama wd/o Sudhakar Gavade
Age: 75 years, Occu: Nil.
R/o: Plot No.212, Mamata Niwas,
Shahu Nagar Road, Near Pach Dodown,
Navin Gavthan, Kedgaon, Ahmednagar,
Tq. & Dist.: Ahmednagar.
2. Mukesh s/o Sudhakar Gavade
Age: 44 years, Occu: Labour,
R/o: As Above.
... Appellant/ Accused No.1
- VERSUS -
The State of Maharashtra.
... Respondent
...
Shri M.A. Tandale, Advocate a/w Shri Shrikant Mundhe,
Advocate, for the appellant/ accused.
Ms. Anuradha S. Mantri, APP for the respondent/ State.
...
WITH
CRIMINAL APPEAL NO.475 OF 2006
Shridhar Nathu Kate.
Since deceased and his L.Rs.
Brought on record as per the
order of this Court dated 03.11.2023.
*2* apeal467a475a478o06 ACB
Through his L.Rs.:-
Anil S/o Shridhar Kate,
Age : 53 years, Occ : Legal Practitioner,
R/o Pathardi, Tq. Pathardi,
Dist. Ahmednagar.
...Appellant/ Accused No.2
- VERSUS -
The State of Maharashtra.
... Respondent
...
Shri N.K. Kakade, Advocate h/f Shri A.N. Kakade, Advocate for
the appellant/ accused.
Ms. Anuradha S. Mantri, APP for the respondent/ State.
...
WITH
CRIMINAL APPEAL NO.478 OF 2006
Mahadev Sahebrao Abhang,
Age : 34 years, Occ : Business,
R/o Pathardi, Tq. Pathardi,
Dist. Ahmednagar.
...Appellant/ Accused No.3
- VERSUS -
The State of Maharashtra.
...Respondent
...
Shri Shrikant Mundhe, Advocate, for the appellant/ accused.
Ms. Anuradha S. Mantri, APP for the respondent/ State.
...
CORAM : SUSHIL M. GHODESWAR, J.
Reserved on : 09 December 2025
Pronounced on : 15 December 2025
*3* apeal467a475a478o06 ACB
JUDGMENT :
-
1. Since these three appeals arise out of the common
judgment and order of conviction, therefore, they are being
decided by this common judgment.
2. By these three appeals filed under Section 374(2) of
the Code of Criminal Procedure (for short, 'the CrPC'), the
appellants/ accused Nos.1 to 3 challenge the judgment and order
dated 14.06.2006 passed by the learned Special Judge,
Ahmednagar, in Special Case (A/C) No.5/2000 by which, the
appellants/ accused have been convicted and sentenced as
under:-
(a) The appellant/ accused No.1 (Sudhakar Gavade) is
convicted for the offence punishable under section 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 (for short,
'the PC Act'). He is sentenced to undergo R.I. for one year and to
pay fine of Rs.3,000/- and in default, to suffer R.I. for one month.
Accused No. 1 is further convicted for the offence punishable
under section 7 of the PC Act and is sentenced to undergo R.I.
for six months and to pay fine of Rs.2,000/- and in default, to
*4* apeal467a475a478o06 ACB
undergo R.I. for one month. Both substantive sentences of
accused No.1 are directed to run concurrently.
(b) The appellant/ Accused No.2 (Shridhar Kate) is
convicted for the offence punishable under Section 13(2) r/w
13(1)(d) of the PC Act and is sentenced to undergo R.I. for one
year and to pay fine of Rs. 2,000/- and in default, to undergo R.I.
for one month. He is further convicted for the offence punishable
under section 12 of the PC Act and is sentenced to undergo R.I.
for six months and to pay fine of Rs. 1,000/- and in default, to
undergo R.I. for one month. Both substantive sentences of
accused No. 2 are directed to run concurrently.
(c) The appellant / accused No.3 (Mahadeo Abhang) is
convicted for the offence punishable under section 12 of the PC
Act and is sentenced to undergo R.I. for six months and to pay
fine of Rs.2,000/- and in default, to undergo R.I. for one month.
3. The brief facts leading to filing of the present
appeals are as under:
(a) The prosecution case is that accused Nos.1 and 2
were public servants. Accused No.1 (Sudhakar Gavade) was
*5* apeal467a475a478o06 ACB
serving as Tahsildar, Pathardi, and Accused No.2 (Shridhar Kate)
was working as a Peon under him. Accused No.3 (Mahadeo
Abhang) was running a hotel in the adjoining premises of the
Tahsil Office at Pathardi. The complainant (PW-1) Shivaji
Vishwanath Kurhe, was running a fair price shop at village
Raghu-Hivare, Taluka Pathardi, since 1991. It is alleged that in
September 1999, accused No.1 called him and demanded ₹500/-
per month as bribe. The complainant expressed inability, stating
that his profit margin was low. It is further alleged that in
November 1999, after depositing amounts through challans, the
complainant submitted the permit to the godown and was entitled
to receive goods through door-to-door transport, but he did not
receive the goods. Upon inquiry, the Supply Inspector, Mr.
Pawar, informed him that during inspection he found the shop
closed, therefore, he submitted a report, and accordingly the
Tahsildar ordered attachment of the shop to the fair price shop at
another village Mandve. The complainant thereafter met Accused
No.1, who told him to come after Diwali if he wanted his licence
back.
(b) It is further case of the prosecution that the
complainant visited the office of Accused No.1 on 13.12.1999 at
*6* apeal467a475a478o06 ACB
about 2.00 p.m. Accused No.1 called Mr. Pawar and instructed
him to obtain in writing certain applications from the
complainant. Accordingly, Mr. Pawar obtained two written
applications, one regarding leave dated 15.10.1999, and another
for attaching the fair price shop in his name dated 08.12.1999.
Mr. Pawar asked him to meet on 15.12.1999. Thereafter, on
15.12.1999 at about 4.00 p.m., the complainant met Accused
No.1 and Mr. Pawar. Accused No.1 told that he knew what was
required to be done to get the shop restored. Accused No.1
demanded ₹5,000/- for returning the fair price shop. When the
complainant expressed inability, accused No.1 insisted that
unless the amount was arranged, it would be difficult to restore
the shop. Accused No.1 instructed that ₹1,000/- be paid after two
days and the remaining ₹4,000/- after the shop is reopened.
(c) The complainant thereafter, approached the Anti
Corruption Bureau on 16.12.1999 and lodged the complaint. The
Deputy Superintendent of Police Shri Kazi recorded the
complaint, and requisitioned the two panchas from the Zilla
Parishad office. The complainant was asked to return on the next
day. On 17.12.1999, the complainant and the panch witnesses
attended the ACB office. They were introduced to each other.
*7* apeal467a475a478o06 ACB
The complaint was read over, explained, and signed. The
complainant produced the trap money. Anthracene powder and
the functioning of the ultraviolet lamp were demonstrated.
Necessary instructions were given and a pre-trap panchanama
was prepared.
(d) The complainant, panchas, and raiding party
proceeded towards the residence of the accused. At around 10.00
a.m., Accused No.2 (Peon) and one driver, Sunil Bhabad, were
present. They informed that accused No.1 had gone to
Ahmednagar and would return shortly. At about 1.30 p.m., a
message was received that accused No.1 had arrived at the
Government Rest House, Tisgaon. The driver brought him back
around 2.00 p.m. Without halting at his residence, accused No.1
went to his office. The complainant, panch, and accused No.2
also went to the office. It is alleged that accused No.1 called the
complainant inside, and the panch witness also entered. The
complainant stated that he had brought the amount. Accused
No.1 rang the bell and called Accused No.2. When accused No.2
entered, accused No.1 instructed him to accept ₹1,000/- from the
complainant. The complainant, panch, and accused No.2 then
stepped out. Accused No.2 took them to the hotel belonging to
*8* apeal467a475a478o06 ACB
accused No.3 and instructed the complainant to pay the amount
as directed by accused No.1. The complainant removed the
tainted currency notes and held them before accused No.2.
accused No.2 accepted the amount, counted it, and handed it over
to accused No.3/ hotel owner Abhang. Accused No.3 counted the
notes with both hands and kept them in the watch-pocket of his
trousers. The complainant signaled the raiding party. The raiding
party apprehended Accused Nos.2 and 3. Under ultraviolet light,
anthracene powder was detected on their hands and on the watch-
pocket of Accused No.3's trousers. The tainted amount was
recovered from his person and tallied with the numbers noted
earlier. The relevant articles, including the trousers of accused
No.3, were seized. A detailed post-trap panchanama was
prepared.
(e) Thereafter, Dy.S.P. Kazi (PW-3) thereafter went to
Pathardi Police Station and lodged the FIR, which was registered
as Crime No.21/1999. The accused were arrested.
(f) As accused Nos.1 and 2 had retired, no sanction was
accorded. Therefore, the charge-sheet was filed. The charge was
framed at Exhibit 32 and the accused pleaded not guilty and
claimed to be tried. In order to prove the guilt of the accused, the
*9* apeal467a475a478o06 ACB
prosecution has examined three witnesses, namely, PW-1
complainant Shivaji Kurhe at Exhibit 38, PW-2 Mahendra Joshi,
who is panch witness and PW-3 Anis Ahmed, Investigating
Officer. After recording evidence and hearing the appellant and
prosecution side, the learned Special Judge was pleased to pass
the impugned judgment.
4. Learned advocate Shri Tandale appearing for the
appellant in Criminal Appeal No.469/2006 submitted that the
appellant (Sudhakar Gavade) was working as Tahasildar at the
relevant time and the prosecution has not obtained the sanction
under Section 19 of the PC Act. Previous sanction is essential for
the prosecution by virtue of Section 19 of the PC Act. According
to him, the Trial Court ought not to have taken cognizance of the
offence punishable under Sections 7, 12 and 13 of the PC Act.
The prosecution has miserably failed to procure the sanction,
which is mandatory before initiating the prosecution against the
public servant. Therefore, the learned Trial Court ought to have
discharged the accused on this count alone.
5. Apart from the aspect of obtaining sanction, learned
*10* apeal467a475a478o06 ACB
advocate Shri Tandale submitted that the prosecution has also
failed to prove its case of valid and proper demand and
acceptance beyond reasonable doubt. According to him, though
the complainant PW-1 was instructed not to offer the amount of
bribe without demand from the appellant, however, he is alleged
to have informed the appellant that he had brought the amount of
bribe. Therefore, there is no valid demand from the appellant to
the complainant and so also, there is no valid acceptance from
the appellant. The complainant PW-1 himself has stated in his
evidence that when he along with the raiding team had gone to
meet the appellant, at that time, the meeting of Talathis was
going on. Thus, in presence of other persons, it was highly
impossible that the appellant has made any demand to the
complainant. Not only this, but the PW-3 I.O. has also admitted
in his cross-examination that there were other persons present in
the office of the Tahasildar. He has recorded the statements of
some of them, however, those witnesses have not been examined
by the prosecution. Moreover, the I.O. PW-3 has deposed that
though he has recorded the statement of one Pawar during
investigation, but the prosecution has not examined the said
Pawar. In view of such prosecution evidence on record,
*11* apeal467a475a478o06 ACB
according to Shri Tandale, the demand as alleged by the
prosecution is, therefore, admittedly not proved. Shri Tandale,
therefore, submitted that the learned Special Judge committed
grave error by convicting the appellant as it has not properly
appreciated evidence brought on record. The prosecution has
failed to prove guilt of the appellant beyond reasonable doubt.
6. Learned advocate Shri Kakade appearing for the
appellant/ accused No.2 (Shridhar Kate) as well as learned
advocate Shri Mundhe appearing for the appellant/ accused No.3
(Mahadeo Abhang) have adopted the submissions of the learned
advocate Shri Tandale. In addition, they submitted that there is no
demand from either of the accused. There is no oral or
documentary evidence of demand on record, except bare
statement of the complainant. The prosecution has neither proved
the demand nor acceptance beyond all reasonable doubts. There
is no previous sanction obtained in case of the accused Nos.1 and
2. According to them, the prosecution has virtually failed to
prove that the demand is made by the accused and mere
acceptance of amount is not sufficient to prove the demand. The
prosecution witnesses have not corroborated each other. As such,
*12* apeal467a475a478o06 ACB
learned advocates submitted that the appeals need to be allowed
and the appellants be acquitted.
7. In support of their submissions, the learned
advocates for the appellants have relied upon the following
judgments:-
(a) A. Karunanithi vs. State, AIR 2025 SC (Criminal)
1250.
(b) Pradeep Purshottam Pimperkhede vs. The State of
Maharashtra, 2014 (3) Mh.L.J. (Cri) 248.
(c) K. Subba Reddy vs. State of Andhra Pradesh, AIR
2008 SC 106.
(d) M.R. Purushotham vs. State of Karnataka, 2014 AIR
(SCW) 5740.
(e) State of Punjab vs. Labh Singh, (2014) 16 SCC 807.
8. Per contra, learned APP strongly opposed the
submissions of learned advocates for the appellants. According to
the learned APP, since accused Nos.1 and 2 had already retired,
therefore, the sanction from the competent authority was not
*13* apeal467a475a478o06 ACB
obtained. Therefore, on the aspect of not obtaining sanction from
the competent court, the Trial Court was justified in recording
evidence and convicting the appellants. According to the learned
APP, the statements of witnesses proved the guilt of the
appellants beyond all reasonable doubts and, therefore, their
evidence cannot be discarded. Learned APP has strenuously
supported the impugned judgment and order passed by learned
Special Judge. The learned Special Judge after analyzing
evidence brought on record in proper perspective, has rightly
delivered the impugned judgment and order and has rightly
convicted the appellants. There is no scope for interference in the
impugned judgment. Learned APP, therefore, prayed for
dismissal of the present appeals.
9. After hearing the submissions of learned advocates,
with their assistance, I have gone through evidence on record
carefully. As regards the aspect of sanction, Section 19 of the PC
Act itself clearly provides that no court shall take cognizance of
an offence punishable under sections 7, 11, 13 and 15 alleged to
have been committed by a public servant, except with the
previous sanction of the competent authority. In this case, it is
*14* apeal467a475a478o06 ACB
clear from the prosecution evidence that when the FIR bearing
Crime No.21/1999 was registered with the Pathardi Police
Station on 17.12.1999, accused Nos.1 and 2 were in service in
the Revenue Department i.e. at the relevant time, accused No.1
was working as Tahasildar and accused No.2 was working as
Peon. As per the prosecution, subsequently, accused Nos.1 and 2
got retired and therefore, the prosecution has not obtained
previous sanction from the competent authority. When the case
pertains to the alleged corruption at the hands of the accused,
while they were in service, the prosecution has to obtain previous
sanction form the competent authority under Section 19 of the
PC Act, which is provision is mandatory in nature. The
applicability of Section 19 will be depending upon the date of
offence. If the public servant commits offence while in office,
then it is absolutely clear that the prosecution cannot be launched
without previous sanction even if he is retired. The reasons
behind this is that the sanction under Section 19 of the PC Act is
offence based and not status based. Therefore, retirement of the
government servant will not remove the requirement of sanction
under Section 19 for the acts done during his service tenure. In
State of Goa v. Babu Thomas, (2005) 8 SCC 130, State of M.P. v.
*15* apeal467a475a478o06 ACB
Virender Kumar Tripathi, (2009) 15 SCC 533, State of
Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119 and State of
Punjab vs. Labh Singh, (2014) 16 SCC 807 , the Honourable
Supreme Court in unequivocal terms has observed that the
sanction under Section 19 of the PC Act is mandatory if the
accused was public servant at the time of commission of offence,
regardless of his retirement. It is also made clear that the
requirement of sanction depends on the status of the accused on
the date of offence and not on the date of cognizance. It is also
equally important that if the Court takes cognizance without valid
sanction, the entire trial is vitiated. Therefore, the sanction under
Section 19 of the PC Act is mandatory in nature. As such, taking
cognizance without valid sanction, vitiates the trial as held in
Nanjappa v. State of Karnataka, (2015) 14 SCC 186.
10. As far as the aspect of demand is concerned, it is
apparent that in view of the admission of PW-1 complainant and
PW-3 I.O. in their deposition that the meeting of Talathis was
going on and there were other persons in the office of the
Tahasildar, the submission of the learned advocates for the
appellants as regards availability of independent witnesses on the
*16* apeal467a475a478o06 ACB
spot, assumes significance. The learned advocates for the
appellants are right in submitting that in presence of other
persons, it was highly impossible that accused No.1 had made
any demand to the complainant. Therefore, failure on the part of
the prosecution in not examining independent witnesses to prove
the demand, destroys the prosecution case. There is mere
statement of the complainant about demand made by accused
No.1. There is no corroboration in testimonies of PW-1, PW-2
and PW-3 on the point of demand.
11. In order to prove the charges for the offence
punishable under Section 13(1)(d) r/w Section 13(2) of the PC
Act, the proof of demand of illegal gratification is absolutely
necessary as it is sine qua non of the offence. If the prosecution
fails to prove this demand of illegal gratification, the charge
against the accused therefore, for the aforesaid offences would
fail. It is clearly established in several judgments delivered by the
Hon'ble Supreme Court including the judgment in Neeraj Dutta
vs. State (Govt. of NCT of Delhi) reported in (2023) 18 SCC
251, that mere possession and recovery of currency notes from
the possession of the accused without proof of demand would not
*17* apeal467a475a478o06 ACB
establish the offence under Section 13(1)(d) r/w Section 13(2) of
the P.C. Act. In absence of proof of demand and illegal
gratification and use of corrupt or illegal means to obtain any
valuable or pecuniary advantage, it cannot be said that the
offence of taking bribe is proved. Therefore, failure on the part
of prosecution to prove demand and illegal gratification, would
be fatal and mere recovery of the amount from the accused
would not entail his conviction for the said offences.
12. It is settled law that the statutory presumption under
Section 20 of the PC Act can arise only after the prosecution
proves the foundational fact of 'demand'. In the present case, as
the testimonies of PW-1, PW-2 and PW-3 do not establish any
demand of illegal gratification by the accused, the presumption
under Section 20 cannot be invoked. This legal position is laid
down in B. Jayaraj v. State of A.P. (2014) 13 SCC 55, P.
Satyanarayana Murthy v. D.I.G. of Police (2015) 10 SCC 152, N.
Vijayakumar v. State of T.N. (2021) 3 SCC 687 and recently in
Neeraj Dutta v. State (2023) 18 SCC 251. Therefore, mere
recovery of tainted currency notes is insufficient to sustain
conviction.
*18* apeal467a475a478o06 ACB
13. In view of the foregoing discussion, I am of the view
that the prosecution has failed to establish the ingredients of
offences against the appellants beyond reasonable doubt.
Consequently, all these three Criminal Appeals are allowed and
the impugned judgment and order is quashed and set aside. The
appellants/ accused are acquitted for the said offences. Appellant
(Sudhakar Gavade) and appellant (Shridhar Kate) have passed
away. As the appellant (Mahadeo Abhang) is on bail, he need not
surrender. The bail bonds stand cancelled. Surety, if any, stands
discharged. Fine amount, if deposited, be refunded to the
appellant (Abhang) and the legal heirs of the deceased appellants.
The record and proceedings be sent back to the concerned Court.
kps (SUSHIL M. GHODESWAR, J.)
