Bombay High Court
Raju Mahavirprasad Agarkar vs The State Of Maharashtra Through Deputy ... on 24 July, 2025
2025:BHC-NAG:7222
Judgment
436 apeals397 & 398.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.397 OF 2013
AND
CRIMINAL APPEAL NO.398 OF 2013
CRIMINAL APPEAL NO.397 OF 2013
Sau.Sushma Gajanan Makeshwar,
aged-40 years, occupation-service,
resident of Wathoda Shukleshwar,
taluka and district Amravati. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through Deputy Superintendent of Police,
Anti Corruption Bureau, Amravati,
taluka and district Amravati. ..... Respondents.
Shri A.S.Mardikar, Senior Counsel assisted by
Shri Soumitra Kanetkar, Advocate for the Appellant.
Shri A.J.Gohokar, Additional Public Prosecutor for the
Respondent/State.
CRIMINAL APPEAL NO.398 OF 2013
Raju Mahavirprasad Agarkar,
age-38 years, occupation-service,
r/o Dhamangaon Railway,
taluka Dhamangaon Rly,
taluka and district Amravati. ..... Appellant.
.....2/-
Judgment
436 apeals397 & 398.13
2
:: V E R S U S ::
The State of Maharashtra,
through Deputy Superintendent of Police,
Anti Corruption Bureau, Amravati,
taluka and district Amravati. ..... Respondents.
Shri Naman Bhangde, Counsel for the Appellant.
Shri A.J.Gohokar, Additional Public Prosecutor for the
Respondent/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 30/06/2025
PRONOUNCED ON : 24/07/2025
COMMON JUDGMENT
1. By these appeals, the appellants (the accused
persons) have challenged judgment and order dated
6.7.2013 passed by learned Additional Sessions Judge &
Special Judge, under the Prevention of Corruption Act,
1988, Amravati (learned Judge of the trial court) in
Special ACB Case No.2/2008.
2. By the said judgment impugned in these appeals,
appellant - Sushma Gajanan Makeshwar (accused
.....3/-
Judgment
436 apeals397 & 398.13
3
Sushma) is convicted for offence punishable under
Section 7 of the Prevention of Corruption Act, 1988 (the
PC Act) and sentenced to undergo rigorous imprisonment
for two years and to pay fine Rs.2000, in default, to
undergo rigorous imprisonment for three months.
She is further convicted for offence punishable
under Section 13(1)(d) read with 13(2) of the PC Act and
sentenced to rigorous imprisonment for three years and to
pay fine Rs.2000/-, in default, to undergo rigorous
imprisonment for three months.
Appellant - Raju Mahavirprasad Agarkar (accused
Raju), is convicted for offence punishable under Section
12 of the PC Act and sentenced to undergo rigorous
imprisonment for two years and to pay fine Rs.2000/-, in
default, to undergo rigorous imprisonment for three
months.
.....4/-
Judgment
436 apeals397 & 398.13
4
3. Brief facts of the prosecution case as emerge from
the police papers and recorded evidence are as under:
Chetan Pardakhe (the complainant), is resident of
Dhamangaon Rly, district Amravati. His grandmother
Vatsalabai has bequeathed old house in favour of his
mother Jayabai. Said Vatsalabai died in the year 2000.
However, the house property was standing in her name
and, therefore, he applied for construction of the said
house as the house was in dilapidated condition and,
therefore, the house is demolished. He filed an
application to Nagar Parishad, Dhamangaon Rly seeking
permission to construct the house. At the relevant time,
accused Sushma was serving as Chief Executive Officer of
the Nagar Parishad, Dhamangaon Rly. and accused Raju
was serving as Accounts Officer in the said Nagar
Parishad.
.....5/-
Judgment
436 apeals397 & 398.13
5
4. As per allegations in complaint, the complainant
approached accused Sushma seeking permission to
construct the house. Accused Sushma has demanded
amount Rs.3000/- for obtaining the same permission in
the month of January 2006. On 11.1.2006, at about 6:00
pm, the complainant met her at her residence and paid
her Rs.1000/- and shown his inability to pay more
amount due to his poor financial condition. After
negotiation, he was asked to pay Rs.1500/- on 17.1.2006.
As the complainant was not wiling to pay the amount, he
approached the office of Anti Corruption Bureau (the
bureau) on 16.1.2006 and lodged a report.
5. After receipt of the report, the officers of the
bureau called two panchas namely Jaya Kadam and
Pramod Mankar from the office of the Deputy Director,
Vocational Education and Training Centre at Amravati. In
presence of the panchas, the complainant has narrated
.....6/-
Judgment
436 apeals397 & 398.13
6
the incident which was verified by the panchas from FIR.
After following due procedure, it was decided to conduct
a raid and the panchas and the complainant were called
on 17.1.2006. On 17.1.2006, demonstration as to use
and characteristics of anthracene powder and ultra violet
lamp was shown to them. The tainted amount, i.e. three
currency of Rs.500, were obtained from the complainant.
The anthracene powder was applied on them and it was
kept in the shirt pocket of the complainant. Pancha No.1
Jaya Kadam was asked to accompany the complainant in
the office of accused No.1. The complainant and both
panchas were instructed that pancha No.1 to remain
along with the complainant and observe events. Whereas,
pancha No.2 was instructed to stay along with other
raiding party members. The complainant was asked to
give a signal by folding sleeves of his right hand after
acceptance of the amount. Accordingly, pre-tap
.....7/-
Judgment
436 apeals397 & 398.13
7
panchanama was drawn. The complainant, both panchas,
and other raiding party members proceeded to
Dhamangaon Rly. Before approaching the office of
accused No.1, again complainant and pancha No.1 were
instructed. The mother of the complainant also along
with them. The complainant and pancha No.1, at about
12:15 pm, went in the office of accused No.1 and
enquired about the work of the complainant on which
accused No.1 asked the complainant whether he has
brought the amount. He has replied affirmatively.
Accused No.1 asked him to hand over the amount to
accused No.2, working in the Accounts Section.
Thereafter, the complainant approached accused No.2 and
handed over the amount as asked by accused No.1 and
gave signal to the raiding party members, on which
accused No.2 was caught. The amount was recovered
from the table of accused No.2 kept below the resister.
.....8/-
Judgment
436 apeals397 & 398.13
8
Accused No.1 was also arrested. The hands of accused
No.2 as well as the complainant were observed under the
ultra violet lamp. Accordingly, post-trap panchanama was
prepared. The officers of the bureau lodged the report
about the said incident, seized relevant documents and
after obtaining the sanction, on completion of
investigation, submitted chargesheet against the accused
persons.
6. Learned Judge of the trial court has framed the
charge against the accused persons vide Exh.3. The
contents of the charge are explained to them to which
they have denied the same and claimed to be tried. In
support of the prosecution case, the prosecution has
examined four witness, which are as follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 Chetan Pardakhe, the complainant 34
.....9/-
Judgment
436 apeals397 & 398.13
9
2 Jaya Kadam, pancha No.1 46
3 Kiran Dhote, the Investigating Officer 69
4 T.C.Benjamin, Principal Secretary of 93
Urban Development Department, on
sanction
7. Besides the oral evidence, the prosecution placed
reliance on complaint Exh.35, seizure memos Exhs.36 and
37, pre-trap panchanama Exh.47, seizure memos Exhs.48
and 49, post-trap panchanama Exh.50, Municipal Council
Form No.1 Exh.52, letter to the Deputy Director of
Vocational Education Exh.70, letter to the Superintendent
of Police (Rural) Exh.71, seizure memo Exh.72, report
Exh.73, FIR Exh.74, letters by the Regional Director
Exhs.75 and 76, map Exh.78, letter by the Chief Officer to
the mother of the complainant Exh.79, property card
Exh.80, sanction order Exh.94, and the Government
Resolution Exh.96.
.....10/-
Judgment
436 apeals397 & 398.13
10
8. After considering the evidence adduced during the
trial, learned Judge of the trial held the accused persons
guilty and convicted and sentenced them as the aforesaid.
9. I have heard learned Senior Counsel Shri
A.S.Mardikar for accused Sushma; learned counsel Shri
Naman Bhangde accused Raju, and learned Additional
Public Prosecutor Shri A.J.Gohokar for the State. They
took me through the entire evidence so also the judgment
impugned in the appeals.
10. Learned Senior Counsel for accused Sushma
submitted that the judgment impugned is not in
accordance with law. There was no valid sanction and the
prosecution also failed to prove the demand and
acceptance of the bribe amount. He submitted that the
entire sanction order nowhere reveals application of mind
by Sanctioning Authority PW4 T.C.Benjamin. As far as
.....11/-
Judgment
436 apeals397 & 398.13
11
the first demand by accused Sushma is concerned, the
same is not corroborated by any evidence. The
genuineness of the demand is not verified by the
investigating officer before conducting the raid. The
grandmother of the complainant died in the year 2000.
The application is filed in her name. The said application
was not signed by the mother of the complainant. The
cross examination of the complainant shows that he was
not aware why there was was delay in processing the
application. He was also not aware as to what is status of
progress of the application. He specifically admitted that
till filing of the application, the house was not transferred
in the name of his mother. He was not aware that the
permission could not be granted for want of compliance
of the papers. Till date of trap, he was not having
knowledge as to the noting taken while processing his
application. After submitting the application, only on two
.....12/-
Judgment
436 apeals397 & 398.13
12
occasions, he went in the office for enquiry. He was not
aware whether Junior Engineer has visited for spot
inspection. He admitted that he is not aware the
processing of the application commenced after the spot
inspection. Even, till the date of recording of his
evidence, the property was standing in the name of his
grandmother. Admittedly, the tainted notes are not found
in possession of accused Sushma. Proof of demand and
acceptance are sine qua non to prove the offence. There
is no corroboration as to the demand by shadow pancha
PW2 Jaya Kadam also. In view of that, the judgment
impugned in the appeals is liable to be set aside.
11. In support of his contentions, learned Senior
Counsel placed reliance on the following decisions:
1. Central Bureau of Investigation vs. Ashok
Kumar Aggarwal, reported in (2014)14 SCC
295;
.....13/-
Judgment
436 apeals397 & 398.13
13
2. Neeraj Dutta vs. State (Government of
NCT of Delhi), reported in (2023)18 SCC
251;
3. Meena (Smt.) w/o Balwant Hemke vs.
State of Maharashtra, reported in (2000)5
SCC 21;
4. Panalal Damodar Rathi vs. State of
Maharashtra, reported in AIR 1979 SC
1191;
5. Criminal Appeal No.149/1999 (Rustam s/
o Ukarda Jadhav vs. State of Maharashtra,
thr.PSO Karanja, decided by this court on
8.10.2014.
6. Criminal Appeal No.219/2005 (Rahul s/o
Mahadeo Wankhede vs. State of
Maharashtra, thr.Anti Corruption Bureau,
Nagpur) decided by this court on
28.10.2014;
7. Criminal Appeal No.541/2004 (Pradip
Nagpurkar vs. State of Maharashtra)
decided by this court on 30.10.2014, and
8. Bismillakha s/o Salarkha Pathan vs. State
of Maharashtra, reported in 2003(5)
Mh.L.J.243.
.....14/-
Judgment
436 apeals397 & 398.13
14
12. Learned counsel for accused Raju reiterated the
and endorsed the same submissions of learned Senior
Counsel. In addition to that, he submitted that shadow
pancha PW2 Jaya Kadam admitted that when they
approached accused Raju, he was not present on his table
and the amount was kept by them on the table. Thus,
there is no evidence as to the acceptance. Mere recovery
of tainted amount, in absence of any proof of demand and
acceptance, cannot be said to be sufficient to convict the
accused.
13. In support of his contentions, learned counsel for
accused Raju placed reliance on following decision:
1. N.Vijaykumar vs. State of Tamil Nadu,
reported in (2021)3 SCC 687, and
2. V.Sejappa vs. State by Police Inspector,
Lokayukta, Chitradurga, reported in
(2016)12 SCC 150.
.....15/-
Judgment
436 apeals397 & 398.13
15
14. Per contra, learned Additional Public Prosecutor for
the State submitted that not only complainant PW1
Chetan Pardakhe but also shadow pancha PW2 Jaya
Kadam proves that there was demand and in pursuance of
the said demand, the amount was accepted by accused
Raju. Thus, the prosecution has proved the demand as
well as the acceptance. He further submitted that as far
as submissions of learned Senior Counsel for accused
Sushma, as to the demand and acceptance, are
concerned, the amount was recovered from the table of
accused Raju. The allegations of demand by the
complainant is corroborated by shadow pancha PW2 Jaya
Kadam. The sanction order is also valid and accorded
after application of mind. Learned Judge of the trial court
has considered all the aspects and, therefore, no
interference is called for in the judgment impugned in the
appeals.
.....16/-
Judgment
436 apeals397 & 398.13
16
15. Since question of validity of the sanction has been
raised as a primary point, it is necessary to discuss an
aspect of sanction. The sanction order was challenged on
ground that it was accorded without application of mind
and mechanically and, therefore, it is not valid sanction.
16. In order to prove the sanction order, the
prosecution placed reliance on evidence of Sanctioning
Authority PW4 T.C.Benjamin vide Exh.93. As per his
evidence, he was the Principal Secretary of Urban
Development Department in the year 2008. He received
documents related to accused Sushma and accused Raju
for sanctioning the prosecution against them. He studied
the proposal received from the office of the bureau,
applied his mind, and on satisfying himself, accorded the
sanction Exh.94. He further testified that as per
Government Resolution dated 3.4.2000 of the General
Administrative Department, Government of Maharashtra,
.....17/-
Judgment
436 apeals397 & 398.13
17
if the co-accused are from the same department,
regardless to the group, he belongs a single order can be
issued by the Administrative Department of the
Government of Maharashtra.
17. The cross examination of Sanctioning Authority
PW4 T.C.Benjamin shows that it is not specifically
mentioned in Exh.94 that he has personally gone through
the documents. He clarified that as he signed, there is
presumption that he has gone through the documents. He
is aware about the documents required for sanction for
construction of house. He admitted that for getting
permission of the construction, a property should stand in
the name of that person. If the application is in the name
of dead person, the same cannot be accepted. He
admitted that site visit of Engineer is necessary for
sanction. He specifically admitted that if these conditions
are not fulfilled, the permission cannot be granted. He
.....18/-
Judgment
436 apeals397 & 398.13
18
further admitted that draft sanction order was received by
his department and sanction order Exh.94 and the draft
sanction order are identical.
18. On the basis of the above evidence, the prosecution
claimed that the prosecution has proved the sanction
order.
19. Perusal of the sanction order reveals that in first
paragraph, designations of accused Sushma and accused
Raju are mentioned and they are public servants within
the meaning of the public servant.
In third paragraph, it is mentioned that the
Government Maharashtra, having fully examined the
material before it and considered all facts and
circumstances disclosed therein, is fully satisfied that a
prima facie case made out against the accused persons
and it is necessary to accord sanction in the interests of
.....19/-
Judgment
436 apeals397 & 398.13
19
justice. The accused persons should be prosecuted in the
court of competent jurisdiction for the said offences.
Accordingly, he accorded the sanction.
20. Thus, the entire sanction order nowhere discloses
that it is Sanctioning Authority PW4 T.C.Benjamin who
has perused the documents, applied his own mind, and,
thereafter, accorded the sanction.
21. Whether the sanction is valid or not and when the
sanction can be called as valid, the same is settled by the
various decisions of the Hon'ble Apex Court as well as this
court.
22. The Hon'ble Apex in the case of Mohd.Iqbal Ahmad
vs. State of Andhra Pradesh, reported in 1979 AIR 677
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
.....20/-
Judgment
436 apeals397 & 398.13
20
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.
23. The Hon'ble Apex Court, in another decision, in the
case of Central Bureau of Investigation vs. Ashok Kumar
Aggarwal supra, cited by learned Senior Counsel for
accused Sushma, 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
.....21/-
Judgment
436 apeals397 & 398.13
21
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 withhold the
sanction. The power to grant sanction is to be exercised
.....22/-
Judgment
436 apeals397 & 398.13
22
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.
24. The Hon'ble Apex Court, in the case of State of
Karnataka vs. Ameerjan, reported in (2007)11 SCC 273,
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.
.....23/-
Judgment
436 apeals397 & 398.13
23
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.
25. 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
Maharashtra, reported in 2021 SCC OnLine Bom 237.
26. This court in the case of Vinod Savalaram
Kanadkhedkar vs. The State of Maharashtra, reported in
.....24/-
Judgment
436 apeals397 & 398.13
24
2016 ALL MR (Cri) 3697 observed that absence of
description of documents referred by sanctioning
authority and only considering the grievances made by
Complainant would show lack of application of mind by
competent authority while according sanction. The
documents other than complaint were taken into
consideration those documents should have been referred
in the sanction order. The sanction order is illegal and
invalid.
27. In view of the 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. The mind of the sanctioning authority
should not be under pressure and the said authority has
to apply his/her own independent mind on the basis of
the evidence came before it. An order of sanction should
not be construed in a pedantic manner. The purpose for
.....25/-
Judgment
436 apeals397 & 398.13
25
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 should have
applied his/her mind while according sanction.
29. After going through the evidence of Sanctioning
Authority PW4 T.C.Benjamin, though he stated that he
has applied his mind and perused the investigation
papers, the sanction order nowhere discloses that it was
he who applied his mind by perusing the investigation
papers. The wordings used in the sanction order are that
the Government Maharashtra, having fully examined the
.....26/-
Judgment
436 apeals397 & 398.13
26
material before it and considered all facts and
circumstances disclosed therein, is fully satisfied that a
prima facie case made out against the accused persons
and it is necessary to accord sanction in the interests of
justice.
Perusal of the sanction order shows that he has not
disclosed on what basis he came to conclusion that the
sanction has to be accorded. The sanction order only
shows that the Sanctioning Authority has applied his
mind and accorded the sanction.
The evidence of the Sanctioning Authority nowhere
discloses as to which documents are considered while
according the sanction. The satisfaction for according the
sanction is not reflected from the said sanction order.
30. Admittedly, the grant of sanction is a serious
exercise of power by the competent authority. It has to be
.....27/-
Judgment
436 apeals397 & 398.13
27
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.
31. After going through the evidence of Sanctioning
Authority PW4 T.C.Benjamin, admittedly, the sanction
order nowhere reflects who has applied mind and which
documents are considered by the sanctioning authority
and on what basis the sanctioning authority came to the
conclusion that the sanction is to accorded to launch
prosecution against the accused persons.
32. Besides the issue of the sanction, the prosecution
claimed that accused Sushma has demanded gratification
.....28/-
Judgment
436 apeals397 & 398.13
28
amount and accused Raju has accepted the same. To
prove the demand and acceptance, the prosecution
mainly placed reliance on the evidence of complainant
PW1 Chetan Pardakhe and shadow pancha PW2 Jaya
Kadam.
33. The evidence of complainant PW1 Chetan
Pardakhe reflects that his grandmother bequeathed her
house situated at Dhamangaon by Will to his mother. At
the relevant time, it was in the name of his grandmother.
As the house was in dilapidated condition, he was
intending to reconstruct it for which permission of the
Dhamangaon Municipal Council was required. He
submitted an application to the said Municipal Council for
permission to reconstruct the house along with the map in
the year 2005. He deposited the requisite amount of
Rs.2500/- and development charges of Rs.1814/- and
obtained receipts. At the relevant time, accused Sushma
.....29/-
Judgment
436 apeals397 & 398.13
29
was working as Chief Officer of the Municipal Council and
accused Raju was working in the Accounts Department.
As there was delay in processing the application, he
contacted in January 2006 to accused Sushma. It is
alleged that for granting permission, she has demanded
amount Rs.3000/-. On 11.1.2006 he paid Rs.1000 by
visiting her house and shown his inability to pay the rest
of the amount. After negotiation, accused Sushma shown
her willingness to accept Rs.1500/- and asked him to
come on 17.1.2006. As the complainant was not willing
to pay the amount, he approached the office of the bureau
and lodged the complaint.
On lodging the complaint, the officer of the bureau
called two panchas. He narrated the contents of his
complaint to the panchas and panchas have verified the
contents of the complaint. Thereafter, demonstration as
to use and characteristics of anthracene powder and ultra
.....30/-
Judgment
436 apeals397 & 398.13
30
violet lamp was shown and necessary instructions were
also given. After completing necessary formalities, pre-
trap panchanama was drawn. Thereafter, the
complainant along with shadow pancha PW2 Jaya Kadam
and other raiding party members including pancha No.2
proceeded to Dhamangaon. At the relevant time, his
mother was also along with him. He along with the said
shadow pancha approached the office of accused Sushma.
As per his allegations, accused Sushma asked him
whether he has brought the amount. On replying in the
affirmative, she asked to pay the same to accused Raju.
Therefore, he approached accused Raju and accused Raju
asked about the amount and he accepted the amount and
kept those notes below the register on the table.
Thereafter, the complainant has given pre-determined
signal on which pancha No.2 and other raiding party
members came in the office and caught accused Raju as
.....31/-
Judgment
436 apeals397 & 398.13
31
well as accused Sushma. The money was seized. The
application dated 15.10.2005 filed in the name of
grandmother of the complainant is at Exh.52. The said
application is filed on behalf of the mother of the
complainant. The map was also annexed with the said
application. The receipt of receiving the application was
of dated 2.12.2005.
The cross examination of the complainant shows
that he had submitted record of nazul about ownership
and other relevant documents. Admittedly, the
application was filed after the death of grandmother of
the complainant who died in the year 2000. His cross
examination further shows that his grandmother had two
legal heirs, his mother and aunt Malubai. It further came
in the evidence that he is not aware whether said Malubai
had given no objection for transferring the property of his
grandmother to anybody's name and proclamation of that
.....32/-
Judgment
436 apeals397 & 398.13
32
objection was published. He admitted that till submission
of the application, the house was not transferred in the
name of his mother. He had no knowledge that the
sanction could not be granted for want of compliance of
the papers. He is also not aware whether his maternal
aunt published a public note so that no one can enter into
the transaction with the present complainant. He
admitted that in all the papers submitted there is no
reference of his name. The application is also not signed
by him. He further admitted that the application is to be
given to the Junior Engineer of the Municipal Council.
Junior Engineer Mukulwar had come to his house for spot
inspection, but he shown his unawareness as to whether
work of scrutiny and spot inspection is of a Junior
Engineer. He was also not aware as to the noting taken
while processing his application. Only on two occasions,
he visited the office for enquiry. He is also not aware at
.....33/-
Judgment
436 apeals397 & 398.13
33
what stage his application is pending. He has also shown
his unawareness as to what activity accused Sushma has
to carry out and at what stage the application is produced
before her for the sanction.
34. Perusal of the cross examination of complainant
PW1 Chetan Pardakhe shows that there was no occasion
for him to talk or contact with accused Raju. He further
admitted that when he went to the table of accused Raju,
he was there for some time and thereafter, he left his
table. The admission further shows that after signal given
by him, pancha and team of the bureau went in the
chamber of accused Sushma.
35. Perusal of the record shows that on 13.12.2005 a
letter was issued by Chief Executive Officer of the
Municipal Council that complainant PW1 Chetan
Pardakhe has not deposited the requisite amount. The
.....34/-
Judgment
436 apeals397 & 398.13
34
endorsement on the said application shows that on
17.1.2006 the application was forwarded to the Junior
Engineer for inspection of the spot. Thus, on 17.1.2006,
i.e. on the day of trap, the application was forwarded to
the Junior Engineer for inspection. The receipts Exh.81 of
payments of Rs.1814/- and Rs.2500/- are also on record
and it bears no date.
36. To corroborate the version of complainant PW1
Chetan Pardakhe, the prosecution has adduced the
evidence of shadow pancha PW2 Jaya Kadam, acted as
pancha No.1 in the said trap proceeding. She reiterated
the entire events took place in her presence during the
pre-trap panchanama. As far as the demand is concerned,
her evidence shows that at about 12:00 pm, one madam
entered in the premises of Nagar Parishad and the
complainant informed her that she is the Chief Executive
Officer. After 10 minutes, she along with the complainant
.....35/-
Judgment
436 apeals397 & 398.13
35
and mother of the complainant went inside the chamber.
The complainant enquired about his work and accused
Sushma asked him whether he brought money and the
complainant replied in the affirmative. She asked the
complainant to meet accused Raju and, therefore, they
went to accused Raju. The complainant told about the
work to accused Raju and accused Raju asked the
complainant whether he deposited the amount on which
the complainant answered in affirmative. Thereafter,
accused Raju went in the chamber of the Chief Executive
Officer and after returning, he asked to pay Rs.1000/- as
told by the Chief Executive Officer. After taking out three
tainted notes, the complainant had given two notes to
accused Raju and accused Raju kept those notes below
the register. Thereafter, on giving the sign, the other
raiding party members came there. She was enquired
whether the amount was kept and she pointed out that
.....36/-
Judgment
436 apeals397 & 398.13
36
the amount was kept below the register. The hands of
accused Raju were checked in the ultra violet lamp on
which the glaze was found and glaze was also found on
the table of accused Raju. The officers of the bureau then
took out the register and the register was also checked in
the light of ultra violet lamp. The amount and relevant
documents were seized.
37. The cross examination of shadow pancha PW2 Jaya
Kadam shows that on Exh.51, i.e. the application, there
was no remark/report of the Engineer. She admitted that
unless the Engineer gives his report, the map is not
sanctioned. The application was in the name of owner as
Vatsalabai. However, application Exh.52 does not bear the
signature of said Vatsalabai. There was no document
seized showing that the complainant had submitted any
application permission of construction in Nagar Parishad,
Dhamangaon Rly. She further admitted that in the
.....37/-
Judgment
436 apeals397 & 398.13
37
complaint there is no allegation about accused Raju.
There was no reference in the complaint that the amount
was to be paid to accused Sushma at her residence. The
cross examination further shows that when it was noticed
that accused Sushma was in the office, there was no
discussion as to whether to visit her residence or not.
They have noticed that accused Sushma was not in her
office initially for one and half hour. When she reached in
the office, there was heavy rush near her office. There
were many persons visiting her office. She further
admitted that after rush in the chamber of accused
Sushma was reduced, they entered in her chamber. The
cross examination further shows that table of accused
Raju was in another room. For about 5-10 minutes, the
complainant was present near the table of accused Raju
when accused Raju was not present in his chamber. The
complainant had not shown any receipt of payment to the
.....38/-
Judgment
436 apeals397 & 398.13
38
accused. She specially admitted there was talk between
the complainant and accused Raju about the amount to be
deposited in the office. She specifically admitted that at
that time accused Raju had not taken money from the
complainant. The cross examination further shows that
when the police reached at accused Raju, the money was
found below the register. While taking out the tainted
notes, the register was lifted. The backside of the register
was checked in U.V.Lamp. The specific admission given
by her shows the tainted notes have not been seized from
accused Raju. In the panchanama Exh.48 it is not
mentioned that accused Raju placed the tainted notes
notes below the register. She specifically admitted that
after the officers of the bureau reached on the spot, initial
formalities were completed in the office of accused Raju
and, thereafter, they went in the chamber of accused
Sushma. No documents from accused Raju as well as
.....39/-
Judgment
436 apeals397 & 398.13
39
accused Sushma were seized. She admitted that accused
Sushma has not made demand of Rs.1500/- in their
presence, but voluntarily stated that she has only made
demand of money.
38. Investigating Officer PW3 Kiran Dhote, has
narrated about the entire procedure carried out and about
the trap which he conducted. After completion of the
formalities, he lodged the report, which is at Exh.73 and
FIR is at Exh.74. His cross shows that the complaint of
the complainant was in respect of permission of
construction of his house. He has not seen the documents
in respect of ownership of the complainant. The
documents were standing in the name of Vatsalabai, who
died in the year 2000. The application was in the name
of Vatsalabai. There was no application in the name of
the complainant for obtaining permission of construction
of house. The property card was also in the name of
.....40/-
Judgment
436 apeals397 & 398.13
40
Vatsalabai, which is at Exh.8. The tainted notes and
clothes of the complainant were not sent to the chemical
analysis for detection of anthracene powder. He further
admitted that the amount was not accepted as per the
report. He has not verified the genuineness of the
allegation of demand. He has not recorded version of
demand of money through micro tape. The amount was
not found with the body of any person. He further
admitted that accused Sushma was not concerned with
the sanction for construction of house. During the
investigation, it revealed to him that during the trap
process, accused Raju had been to the chamber of accused
Sushma only once. One Mangala Navghare was lady
peon standing near the chamber of accused Sushma.
During the trap process, she was present in the office and
her statement was recorded.
.....41/-
Judgment
436 apeals397 & 398.13
41
39. Thus, on the basis of the above said evidence,
attempt was made to show that as far as the demand is
concerned, there is no verification as to the genuineness
of the allegation of the demand.
40. It is submitted by learned Senior Counsel for
accused Sushma that as far as evidence of the
complainant is concerned, the same shows that he was
not aware at what stage his application is pending. He
admitted that it is the Junior Engineer who has to inspect
the spot and the Junior Engineer visited the spot.
41. Exh.79 communication addressed to Vatsalabai,
shows that she was directed to comply by depositing the
amount which is precondition for granting permission for
construction of house.
42. Learned Senior Counsel for accused Sushma has
pointed out that after the death of original owner, the
.....42/-
Judgment
436 apeals397 & 398.13
42
application was filed in her name. Though the evidence
of the complainant shows that the demand made was of
Rs.1500/-, the amount accepted was Rs.1000/-. Accused
Raju, initially, asked about the payment of the requisite
fee. Admittedly, the amount was not seized either from
possession of accused Sushma or accused Raju. The
evidence of the complainant shows that the entire
proceeding of trap was conducted in the chamber of
accused Sushma. Whereas, evidence of shadow pancha
PW2 Jaya Kadam shows that after completion of the
proceeding in the office of accused Raju, they went in the
office of accused Sushma.
43. Learned Senior Counsel for accused Sushma
submitted that there is no corroboration as to the earlier
demand. The investigating officer has not verified as to
the allegations of demand. Though the mother of the
complainant was present along with him at the time of
.....43/-
Judgment
436 apeals397 & 398.13
43
trap, she was not examined. As per the evidence of the
complainant, on negotiation, accused Sushma agreed to
accept amount of Rs.1500/-, then why amount Rs.1000/-
was kept on the table of accused Raju, which remained to
be unexplained. The complainant was not aware as to the
progress of his application filed seeking permission to
construct the house. His evidence shows that only twice
he visited the office of accused Sushma and met accused
Sushma on 11.1.2006, but the complaint is lodged on
16.1.2006. There is no explanation as to the said delay.
The evidence of the complainant specifically shows that
on 11.1.2006 he had been to the house of accused
Sushma and at that time he has paid Rs.1000/-. There is
no corroboration to this fact also. As per cross
examination of the complainant, the alleged trap was
conducted in the chamber of accused Sushma. Whereas,
as per the evidence of shadow pancha PW2 Jaya Kadam,
.....44/-
Judgment
436 apeals397 & 398.13
44
the entire proceeding of trap was conducted near the
table of accused Raju, in another room. Thus, There is
inconsistent evidence as far as demand and acceptance is
concerned. The possibility of paying the amount towards
the fees cannot be ruled out as shadow pancha PW2 Jaya
Kadam specifically admitted that accused Raju asked
about depositing of the amount. The amount was not
recovered either from the possession of accused Sushma
or accused Raju. but it was found on the table under the
register. The evidence of complainant PW1 Chetan
Pardakhe and shadow pancha PW2 Jaya Kadam shows
that accused Raju was not present on his table for some
period. Therefore, possibility of keeping the amount
without the knowledge of accused Raju cannot be ruled
out.
The evidence of complainant PW1 Chetan
Pardakhe and shadow pancha PW2 Jaya Kadam is not
.....45/-
Judgment
436 apeals397 & 398.13
45
consistent on material point. It should corroborate to
each other on the material particulars.
Learned Senior Counsel placed reliance on the
decision in the case of Panalal Damodar Rathi supra,
Wherein it is held that there could be no doubt that the
evidence of the complainant should be corroborated in
material particulars. After introduction of Section 165-A
of the Indian Penal Code making the 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 the
conversation between him and the accused has been set
out earlier. As the entire case of the prosecution depends
upon the acceptance of the evidence relating to the
conversation between the complainant and the appellant
.....46/-
Judgment
436 apeals397 & 398.13
46
during which the appellant demanded the money and
directed payment to the second accused which was
accepted by the complainant, we will have to see whether
this part of the evidence of the complainant has been
corroborated. The Hon'ble Apex Court held that it should
corroborate to each other.
44. In the case of Mukhtiar Singh (since deceased)
through his LR vs. State of Punjab, reported in 2017 SCC
ONLine SC 742, it has been held that the 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.
.....47/-
Judgment
436 apeals397 & 398.13
47
45. In the present case also, the evidence of
complainant PW1 Chetan Pardakhe and shadow pancha
PW2 Jaya Kadam shows the only enquiry by accused
Sushma whether money had been brought or not.
46. While deciding the issue involving the offence
under the P.C.Act, a fact required to be considered is that
the evidence of complainant PW1 Chetan Pardakhe will
have to be scrutinized meticulously. The testimony of
such person requires careful scrutiny.
47. In the case of M.O.Shamsudhin vs. State of Kerala,
reported in(1995)3 SCC 351, 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
.....48/-
Judgment
436 apeals397 & 398.13
48
illegal to act upon the uncorroborated testimony of the
accomplice the rule of prudence so universally followed
has to amount to rule of law that it is unsafe to act on the
evidence of an accomplice unless it is corroborated in
material aspects so as to implicate the accused.
48. In the case of Bhiva Doulu Patil vs. State of
Maharashtra, reported in 1963 Mh.L.J. (SC) 273 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."
49. In the present case, learned Senior Counsel has
rightly pointed out that there is variance in the evidence
.....49/-
Judgment
436 apeals397 & 398.13
49
of complainant PW1 Chetan Pardakhe and shadow
pancha PW2 Jaya Kadam on material particulars as far as
the alleged incident of trap is concerned. It is pertinent to
note that though the complainant has approached the
office of the bureau and filed the complaint, the same was
not filed on 11.1.2006, but it was filed after 4 days of the
demand. For the said delayed complaint, there is no
explanation. The evidence of the complainant nowhere
shows that on 16.1.2006 also he has visited the office of
accused Sushma and there was any demand. As per his
evidence, the demand was on 11.1.2006.
50. As far as the earlier demand by accused Sushma is
concerned, there is no corroboration to the fact that on
that day the complainant had been to the house of
accused Sushma whereat she has demanded the amount
of Rs.3000/-. This fact is not verified by the investigating
officer by way of recording the communication between
.....50/-
Judgment
436 apeals397 & 398.13
50
accused Sushma and the complainant on 17.1.2006
before the trap. The investigating officer has not
recorded the statement of house staff of accused Sushma
as far as the visit of the complainant to her house is
concerned. Thus, there is no corroboration as far as
earlier demand is concerned.
51. The evidence of the investigating officer, especially
the cross examination wherein specific admission
obtained by the defence counsel, shows that he has not
verified regarding the demand of bribe amount. He has
not recorded the conversation of demand of money
through micro-tape. Even, he has not forwarded the
tainted notes and the clothes of the complainant for
chemical analysis for detection of the anthracene powder.
52. It is well settled that mere possession and recovery
of currency notes from accused without proof of demand
.....51/-
Judgment
436 apeals397 & 398.13
51
would not establish an offence under Section 7 as well as
Section 13(1)(d)(i)(ii) of the said Act.
53. In the case of Bismillakha s/o Salarkha Pathan
supra, this court held that recovery of the amount was
whether the gratification other than legal remuneration
has to be established.
54. It is held by the Honourable Apex Court in
paragraph Nos.13 and 14 in the case of Mukhtiar Singh
(since deceased) through his LR vs. State of Punjab cited
supra as follows:
"13. Before averting to the evidence, apt it
would be to refer to the provisions of the Act
whereunder the original accused had been
charged:
"7. Public servant taking gratification
other than legal remuneration in
respect of an official act. - Whoever,
being, or expecting to be a public
servant, accepts or obtains or agrees to
accept or attempts to obtain from any
person, for himself or for any other
.....52/-
Judgment
436 apeals397 & 398.13
52
person, any gratification whatever,
other than legal remuneration, as a
motive or reward for doing or
forbearing to do any official act or for
showing or forbearing to show, in the
exercise of his official functions, favour
or disfavour to any person or for
rendering or attempting to render any
service or disservice to any person, with
the Central Government or any State
Government or Parliament or the
Legislature of any State or with any
local authority, corporation or
Government company referred to in
clause (c) of section 2, or with any
public servant, whether named or
otherwise, shall be punishable with
imprisonment which shall be not less
than three years but which may extent
to seven years and shall also be liable to
2 (2014) 5 SCC 103 3 (2016) 11 SCC
357 fine.
13. Criminal misconduct by a public
servant - (1) A public servant is said to
commit the offence of criminal
misconduct, ............... (2)..............."
14. The indispensability of the proof of
demand and illegal gratification in establishing
a charge under Sections 7 and 13 of the Act,
has by now engaged the attention of this Court
on umpteen occasions. In A.Subair vs. State of
Kerala, this Court propounded that the
.....53/-
Judgment
436 apeals397 & 398.13
53
prosecution in order to prove the charge under
the above provisions has to establish by proper
proof, the demand and acceptance of the illegal
gratification and till that is accomplished, the
accused should be considered to be innocent."
55. In the present case, as noted above, the
evidence as to the demand of illegal gratification is not
satisfactory and convincing and since proof of demand is
a sine qua non for convicting the accused in such cases, in
the present case, it cannot be said the prosecution has
been successful in proving its case beyond reasonable
doubt.
56. In the case of State of Punjab vs. Madan Mohan Lal
Verma, reported in 2013(4) Crimes 41 (SC), it has been
held that the law on the issue is well settled that demand
of illegal gratification is sine qua non for constituting an
offence under the Act 1988. Mere recovery of tainted
money is not sufficient to convict the accused when
.....54/-
Judgment
436 apeals397 & 398.13
54
substantive evidence in the case is not reliable, unless
there is evidence to prove payment of bribe or to show
that the money was taken voluntarily as a bribe. Mere
receipt of the amount by the accused is not sufficient to
fasten guilt, in the absence of any evidence with regard to
demand and acceptance of the amount as illegal
gratification. Hence, the burden rests on the accused to
displace the statutory presumption raised under Section
20 of the Act 1988, by bringing on record evidence, either
direct or circumstantial, to establish with reasonable
probability, that the money was accepted by him, other
than as a motive or reward as referred to in Section 7 of
the Act 1988. While invoking the provisions of Section 20
of the Act, the court is required to consider the
explanation offered by the accused, if any, only on the
touchstone of preponderance of probability and not on
the touchstone of proof beyond all reasonable doubt.
.....55/-
Judgment
436 apeals397 & 398.13
55
However, before the accused is called upon to explain
how the amount in question was found in his possession,
the foundational facts must be established by the
prosecution. The complainant is an interested and
partisan witness concerned with the success of the trap
and his evidence must be tested in the same way as that
of any other interested witness. In a proper case, the court
may look for independent corroboration before convicting
the accused person.
57. After appreciating the evidence on record it reveals
that as per the prosecution case, accused Sushma
demanded the amount for granting permission to
construct the house. The application filed by the
complainant was in the name of Vatsalabai who was not
alive on the day of filing of the application i.e. on
15.10.2005. The communication issued by the Municipal
Council in the name of said Vatsalabai Exh.79 shows that
.....56/-
Judgment
436 apeals397 & 398.13
56
she was asked to comply by producing the documents and
by paying the development charges. The complainant
has deposited the amount of Rs.1814/-, as per the said
receipt on 14.2.2005 itself. As per the evidence of the
complainant, initially, he went to the office of accused
Sushma in the month of January 2006 and the demand
was made to him. As far as the first demand is
concerned, he has not given the date. As per his
evidence, second demand was on 11.1.2006 when he had
been to accused Sushma. There is no corroboration as to
his visit at the house of accused Such. The investigating
officer has not recorded any statement of the house staff
of accused Sushma neither verified the genuineness of
allegations that the complainant has visited the house of
accused Sushma on 11.1.2006. Though the demand was
on 11.1.2006, the complaint was filed on 16.1.2006, i.e.
after four days. The evidence of the complainant and
.....57/-
Judgment
436 apeals397 & 398.13
57
pancha No.1 is only to the extent that accused Sushma
made enquiry whether he brought the amount.
58. In view of the observation of the Hon'ble Apex
Court in the case of Mukhtiar Singh supra, a stray query,
whether he had brought the amount or not, 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.
59. The evidence of complainant PW1 Chetan
Pardakhe and shadow pancha PW2 Jaya Kadam, as to the
place of the trap, is also not consistent. The complainant
has shown complete unawareness as to the progress
regarding his application.
60. Thus, all these events create doubt about the
demand by accused Sushma.
.....58/-
Judgment
436 apeals397 & 398.13
58
61. As far as acceptance is concerned, the evidence of
complainant PW1 Chetan Pardakhe and shadow pancha
PW2 Jaya Kadam shows that for some time accused Raju
was not present at the table.
Thus, possibility of thrusting of the amount cannot
be ruled.
62. The Hon'ble Apex Court in the case of
Mohmoodkhan Mahboobkhan Pathan vs. State of
Maharashtra, reported in (1997)10 SCC 600 held that
the primary condition for acting on the legal presumption
under Section 4(1) of the Act is that the prosecution
should have proved that what the accused received was
gratification. The word "gratification" is not defined in the
Act. Hence it must be understood in its literal meaning. In
the Oxford Advanced Learner's Dictionary of Current
English, the work "gratification" is shown to have the
.....59/-
Judgment
436 apeals397 & 398.13
59
meaning "to give pleasure or satisfaction to". The word
"gratification" is used in Section 4(1) to denote
acceptance of something to the pleasure or satisfaction of
the recipient. If the money paid is not for personal
satisfaction or pleasure of the recipient it is not
gratification in the sense it is used in the section. In other
words unless the prosecution proves that the money paid
was not towards any lawful collection or legal
remuneration the court cannot take recourse to the
presumption of law contemplated in Section 4(1) of the
Act, though the court is not precluded from drawing
appropriate presumption of fact as envisaged in Section
114 of the Evidence Act at may stage.
63. In the case of State of Maharashtra vs. Rashid
B.Mulani, reported in (2006)1 SCC 407 it is held that a
fact is said to be proved when its existence is directly
established or when upon the material before it the Court
.....60/-
Judgment
436 apeals397 & 398.13
60
finds its existence to be so probable that a reasonable man
would act on the supposition that it exists. Unless
therefore, the explanation is supported by proof, the
presumption created by the provision cannot be said to be
rebutted. Something more, than raising a reasonable
probability, is required for rebutting a presumption of law.
Though, it is well-settled that the accused is not required
to establish his explanation by the strict standard of 'proof
beyond reasonable doubt', and the presumption under
Section 4 of the Act would stand rebutted if the
explanation or defence offered and proved by the accused
is reasonable and probable.
64. In the instant case, upon careful consideration of
the prosecution evidence, particularly the evidence of
complainant PW1 Chetan Pardakhe shadow pancha PW2
Jaya Kadam, I find that the prosecution could not
establish beyond reasonable doubt the prior demand that
.....61/-
Judgment
436 apeals397 & 398.13
61
gratification was demanded by accused Sushma. The
earlier demand, as per the prosecution, was on 11.1.2006,
which is not corroborated and the FIR is also lodged after
four days of the said demand.
65. 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. The complainant cannot be placed on any
better footings than that of an accomplice and
corroboration in material particulars connecting the
accused with the crime has to be insisted upon.
66. As far as the applicability of presumption is
concerned, learned Additional Public Prosecutor for
the State placed reliance on the decision of the
constitution bench of the Honourable Apex Court in
.....62/-
Judgment
436 apeals397 & 398.13
62
the case of Neeraj Dutta vs. State (Govt.of NCT of
Delhi) supra wherein it has been held that
presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification
may be made by a court of law by way of an inference
only when the foundational facts have been proved by
relevant oral and documentary evidence and not in
the absence 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. It is further held that insofar 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
.....63/-
Judgment
436 apeals397 & 398.13
63
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.
67. As observed earlier, that prior demand by
accused Sushma is not proved by the prosecution, a
doubt a created as to the demand of the amount as it
is not corroborated and not verified also.
68. As already observed, while granting sanction
the principles for granting sanction are not taken into
consideration, the act of granting sanction is a solemn
sacrosanct which affords protection to the government
servants against frivolous prosecutions, 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
.....64/-
Judgment
436 apeals397 & 398.13
64
sanctioning authority to exercise powers strictly
keeping in mind all relevant facts and material and
accord the sanctions.
69. In the present, the sanction order discloses that
the material was examined by the Government of
Maharashtra and the satisfaction for according of
sanction was also arrived at by the Government of
Maharashtra. The sanction order does not specifically
mention name of any officer who had actually
undertaken the exercise of examining the material and
recording a subjective satisfaction in this regard on
behalf of the Government of Maharashtra.
70. Thus, the entire exercise carried out, as far as
sanction is concerned, is in secrecy and it is not known
as to who has applied his mind and accorded the
.....65/-
Judgment
436 apeals397 & 398.13
65
sanction. A sanction order showing prima facie
application of mind is a valid sanction.
71. Thus, on the ground of sanction also, the
prosecution in the present case fails. The evidence as
to the demand is not satisfactory and proof of demand
is sine qua non to prove the charge. As such, as
appeals deserve to be allowed, I pass following order:
ORDER
(1) The Criminal Appeals are allowed.
(2) The judgment and order dated 6.7.2013 passed by
learned Additional Sessions Judge & Special Judge,
under the Prevention of Corruption Act, 1988,
Amravati in Special ACB Case No.2/2008 convicting
and sentencing the accused persons is hereby quashed
and set aside.
.....66/-
Judgment
436 apeals397 & 398.13
(3) Accused Sushma Gajanan Makeshwar and accused
Raju Mahavirprasad Agarkar are hereby acquitted of
offences for which they were charged and convicted.
Appeals stand disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 28/07/2025 10:49:29
