Bombay High Court
Kailas Shankar Ghule vs State Of Mah on 27 November, 2025
2025:BHC-AUG:32573
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 263 OF 2005
Kailas s/o Shankar Ghule,
Age; 36 years, Occ; Service,
'R/o; E-2/6, H-11, Mayurnagar,
HUDCO, Aurangabad,
Taluka and District Aurangabad. ...APPELLANT
VERSUS
The State of Maharashtra. ...RESPONDENT
...
Advocate for the Appellant : Mr. A.M. Tandale
APP for Respondent-State : Mr. Vivek M. Lomte
...
CORAM : SUSHIL M. GHODESWAR, J.
Date for Reservation : 18.11.2025
Date of Pronouncement : 27.11.2025.
JUDGMENT :
1. Being aggrieved by the judgment and order dated
30.03.2025 passed in Special Case No. 13 of 2003 by the learned 2nd
Special Judge (P.C.), Aurangabad, convicting the appellant for the
offences under Section 7 and Section 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act, 1988, the appellant has preferred this
appeal.
2. The prosecution case in brief is as under :
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Appellant Kailas Shankar Ghule, who was working as
temporary clerk in City Survey Office, Aurangabad stood tried for the
offence of demanding and accepting bribe of Rs. 120/-, from the
Complainant PW-2, Durgasingh Suryawanshi as illegal gratification
while discharging his duty as Public Servant. The prosecution story in
short is that, in February, 2003 PW-2 Durgasingh was in need of
"Touch Map" of his ancestral house bearing City Survey No. 3265 for
transferring the said house in the name of his father on account of death
of his grand-father. Hence, PW-2 Daurgasingh applied for copies of the
said "Touch Map" on 28.02.2003 in the office of Land Records at
Aurangabad. The application for copy was referred to the accused Kailas
Ghule who was working as temporary Clerk in the said City Survey
Office, Aurangabad. Accordingly, PW-2 Durgasingh approached accused
Ghule for further action. Accused Kailas accepted said copying
application and directed the Complainant to come on next day. Since
there was holiday for next two days, therefore, PW-2 Complainant went
to the office of Land Records on 03.03.2003. At 3.00 p.m. he met
appellant Kailas and asked what had happened to his work of obtaining
copies. The appellant/accused told him that his work would cost Rs.
100/- for the Government and another Rs. 100/- for himself and asked
him to pay Rs. 200/-. It is the case of PW-2- Complainant that he was
ready to pay Rs. 100/- towards Government charges but he was not
willing to pay Rs. 100/- towards bribe. He then asked the
appellant/accused to do work and told him that now he had no such
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amount to pay. There upon the appellant/accused alleged to have told
the PW-2 Complainant to come on next day with Rs. 190/-. PW-2
Complainant then showed his willingness to pay said amount and
returned from that office.
On feeling that the appellant is claiming Rs. 90/- extra
towards illegal gratification, PW-2 Complainant went to the office of Anti
Corruption Bureau at Auragnabad and narrated the incident to the
Inspector PW-4 Anil Gaikwad. Said PW-4 Gaikwad has reduced his
complaint into writing at (Exh. 15). The Inspector, PW-4 Gaikwad,
decided to lay trap on accused under the belief that the appellant would
be accepting illegal gratification of Rs. 90/- from the Complainant. He,
accordingly, called two panchas namely Pandhari and Popat Dhanedar.
After completion of all the formalities and after giving proper
instructions/understanding to all panchas, the raiding party consisting
the Complainant, panchas and Inspector Anil Gaikwad with their team
proceeded to City Survey Office on Aurangabad. The PW-2, Complainant
and PW-3 Pandhari (Panch) then approached the appellant/accused.
PW-2- Complainant then asked the appellant as to what has happened
about his copying work. The appellant/accused asked the PW-2
Complainant whether the amount has been brought by him, on that PW-
2 Complainant took out tainted notes from his left chest pocket of shirt
and offered it to the appellant/accused. The appellant/accused accepted
those notes by his right hand fingers and then he counted all notes and
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took out a copy of document to be given to PW-2 Complainant. He then
separated a note of Rs. 50/- and a note of Rs. 20/- out of the tainted
notes and further he took out another note of Rs. 10/- from his left chest
pocket of shirt and asked the Complainant to hand over that note to one
Vitthal Suryawanshi, who was sitting nearby. Accordingly, he took out
Rs. 80/- and the documents were handed over, then Suryawanshi
prepared a receipt of Rs. 75/- and obtained signature of the PW-2
Complainant on it and gave a map of "Khate Khat" to the Complainant.
After coming out of the office, the PW-2 Complainant gave signal to the
raiding party, accordingly inspector Mr. Anil alongwith along with his
team entered the room of the appellant/accused with another panch
Popat. The amount of Rs. 120/- was taken out from the chest pocket of
shirt of the appellant/accused. After collecting tainted notes from the left
chest pocket of the shirt of the appellant, that shirt pocket was showing
blue shining of Anthracene Powder, when it is checked under the ultra
violate lamp. After completing trap, Inspector Mr. Anil lodged complaint
at Exh. 41. After completion of investigation, the charge-sheet came to be
filed against the appellant/accused for the offence under Sections 7 and
13(1) (d) punishable under Section 13(2) of the Prevention of Corruption
Act, 1988.
3. Vide Exhibit 5, the charge came to be framed against the
appellant and the appellant/accused pleaded not guilty to the charge
and claimed to be tried. His defence is of total denial. During the trial
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the prosecution has examined as many as four witnesses. During the
evidence, the prosecution has examined PW-1 Vikram Bhujangrao
Khedkar, at Exhibit-11, who is the sanctioning authority. After
recording of the evidence and hearing the parties, the learned Special
Judge (PC) Aurangabad has convicted the appellant under Section 7 of
the PC Act and sentenced him to suffer RI for one year and to pay fine of
Rs. 1,000/-, in default, R.I. for one month. He is further convicted under
Section 13 (1) (d) punishable under Section 13 (2) and sentenced to
suffer R.I. for one year and to pay fine of Rs. 1,000/- and in default, to
undergo RI for a month. The appellant has challenged this judgment and
order in this appeal.
4. Mr. Tandale, learned Counsel for the appellant, submitted
that the Sanctioning Authority has not applied its mind while according
sanction. The Sanctioning Authority has not even bothered to go
through the record and there is no subjective satisfaction of the said
Sanctioning Authority to arrive at conclusion and accord sanction to
prosecute the appellant/accused. He also pointed out crucial evidence of
PW-1 sanctioning authority that the appellant Kailas is not Government
servant. He had also admitted in his cross-examination that at the
relevant time, the appellant/accused Kailas was not entitled to Dearness
Allowance, leave facilities and other facilities which are available to other
Government servants. The said witness again stated that the appellant
Kailas is not entitled for any pay scale and that he was not entitled to
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claim any right as like any other Government Servant. The crucial
aspect, by way of admission of this witness as stated in his cross-
examination, is that while according sanction he has not inquired from
the City Survey Office as to how much fees was necessary for the copying
fee which the Complainant was required to pay towards obtaining copies
and also that how much amount of bribe was accepted by the
appellant/accused. Further, this witness has also admitted that PW-2
Complainant had submitted as many as total three applications for
obtaining copies, which are exhibited at Exhibit 13 dated 25.02.2003,
Exhibit 14 dated 27.02.2003 and Exhibit 15 dated 04.03.2003
respectively. However, the Complainant while preferring complaint dated
04.03.2003 has mentioned the dates of coping applications dated
25.02.2003 and 27.02.2003 only.
5. Mr. Tandale, learned Counsel for the appellant vehemently
submitted that the prosecution itself is not sure as to how much amount
was towards the copying charges and how much amount towards bribe.
According to him, the prosecution has not proved the charge under
Section 13 (1) (d) punishable under Section 13 (2) of the Prevention of
Corruption Act, which itself requires to be established that the
appellant/accused has accepted the amount as illegal gratification and
mere acceptance and recovery of the amount from the appellant is not
sufficient. In order to attract the ingredients of the aforesaid offences, it
was necessary for the prosecution to establish that what were the
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charges towards getting copy and what was the amount accepted
towards bribe, which was accepted by the appellant. He, therefore,
submitted that the entire prosecution case is illegal and therefore, the
appellant deserves to be acquitted.
6. In support of his submission, Mr. Tandale, learned Advocate
for the appellant, has relied upon the following judgments:-
"i) P. Satyanarayana Murthy v. Dist. Inspector of Police
and Anr. - AIR 2015 SC 3549, (Full Bench, Supreme Court),
ii) C.M. Girish Babu V. C.B.I. Cochin, High Court Kerala -
AIR 2009 SC 2022 (Supreme Court),
iii) M.K. Harshan Vs. State of Kerala - (1996) 11 SCC 720,
(iv) C.B.I. v. Ashok Kumar Aggrawal - AIR 2014 SC 827
(Supreme Court),
(v) Ram Prakash Arora v. The State of Punjab - AIR 1973
SC 498,
(vi) State of Maharashtra Through C.B.I. v. Mahesh G. Jain
- 2014 ALL SCR 177,
(vii) Panalal Damodhar Rathi v. State of Maharashtra- AIR
1979, SC 1191,
(viii) B.Jayaraj v. State of A.P. - 2014 ALL SCR 1619,
ix) Mukhtiar Singh (Since Deceased) Through his Legal
Representative v. State of Punjab - (2017) 8 SCC 126."
7. Per contra, learned APP Shri Lomte appearing for the
respondent/ State has strenuously supported the impugned judgment
and order passed by learned Special Judge. According to him, learned
Special Judge after analyzing evidence brought on record in proper
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perspective, has rightly delivered the impugned judgment and order and
has rightly convicted the appellant. There is no scope of interference in
the impugned judgment. He, therefore, prayed for dismissal of the
present appeal.
8. After hearing learned advocates for the parties, I have gone
through the record and proceedings of the case minutely. The record
reveals that the prosecution has examined PW-2 Complainant
Durgasingh at Exhibit 17. The said witness, who is the Complainant,
had not stated clearly as to how much charges were being paid towards
obtaining copies and how much amount was towards bribe. The said
PW-2 Complainant has admitted in his cross-examination that he had
applied in the office of City Survey Office for getting copies prior to
28.02.2003. He has also admitted in his cross-examination that he had
not obtained any information prior to 28.02.2003 as to how much
amount of copying fees is required for getting copies. He again admitted
that he did not obtain any information till the appellant Kailash was
caught, as to how much amount of copying fees he would require to pay.
He admitted that he has applied vide another application for getting
copies of two other documents and the appellant did not give him the
exact figure of copying charges by calculation. However, he gave the
estimated charges in round figure. Thus, learned advocate Mr. Tandale
is right in submitting that since the demand is required to be proved
beyond all reasonable doubts by the prosecution, it is necessary to point
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out as to how much amount is towards bribe and how much amount is
towards the Government charges/fees towards supply of copies. Neither
PW-4-Investigating Officer, nor PW-2- Complainant have taken efforts to
establish the claim that out of Rs. 190/- amount, how much amount
was towards the Government charges and how much amount was
towards the bribe.
9. The prosecution has also tried to establish its case by
examining PW-3 Pandharinath, who was a shadow panch during the
trap. However, the said shadow panch is declared hostile witness. The
said witness was declared hostile by the prosecution and in his cross-
examination at the hands of prosecution, nothing fruitful could be
extracted from the evidence of said witness. As such, said witness is not
supported the prosecution story.
10. Considering the evidence brought on record, the prosecution
has not justified in establishing the charges against the appellant. In
order to prove the charges for the offence punishable under Section 13
(1) (d) punishable under 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 appellant therefore, for the aforesaid
offences would fail. It is clearly established in several judgments
delivered by the Hon'ble Supreme Court including the judgments cited
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by learned advocate for the appellant that mere possession and recovery
of currency notes from the possession of the accused without proof of
demand would not establish the offence under under Section 13 (1) (d)
punishable under 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. Thus, the proof of demand has been
held to be indispensable ingredient. Therefore, failure on the part of
prosecution to prove demand and illegal gratification, would be fatal and
mere recovery of the amount from the appellant/accused would not
entail his conviction for the offence punishable under Section under
Section 13 (1) (d) punishable under Section 13 (2) of PC Act.
11. In view of the discussion in foregoing paragraphs, the
prosecution having failed to prove the said charges against the appellant,
the appellant deserves to be acquitted. Consequently, this Criminal
Appeal is allowed and the impugned judgment and order is quashed and
set aside. The appellant/ accused is acquitted for the said offence. As the
appellant is on bail, he need not surrender. The bail bond stands
cancelled. Surety, if any, stands discharged. Fine amount, if deposited,
be refunded. The record and proceedings be sent back to the concerned
Court.
(SUSHIL M. GHODESWAR, J.)
mahajansb/
