High Court
Legal Reasoning
-1- Cri.Appeal.79.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 79 OF 20041.Vishwambhar s/o. Abaji Bharose,Age : 48 years, Occu. : Service,R/o. Gajanan Nagar, Parbhani, District Parbhani. 2.Dasrao S/o. Ramrao Suryawanshi,Age : 45 years, Occu. : Service,R/o. Ganeshnagar, Vasmat, R/o. Vasmat, Dist. Hingoli.… Appellants (Orig. Accused)VersusThe State of Maharashtra… Respondent…Mr. S. P. Chapalgaonkar, Advocate for AppellantsMr. A.A.A. Khan, APP for Respondent – State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 22nd JULY, 2024PRONOUNCED ON : 9th AUGUST, 2024JUDGMENT : 1.Both appellants, who stood convicted by learnedSpecial Judge, Parbhani on 29.12.2003 in Special Case No. 03 of1999 for offence under sections 7 and 13(1)(d) punishable undersection 13(2) and section 12 of the Prevention of Corruption Act,1988 (P.C. Act), are challenging the impugned judgment by filinginstant appeal. -2- Cri.Appeal.79.2004PROSECUTION CASE IN NUTSHELL IS AS UNDER2.Appellants were charge-sheeted on the premise that,appellant no.1 Vishwambhar a Talathi demanded Rs.5,000/- fromcomplainant Rangnath Chavan, since deceased, for effectingmutation entry. Finally, appellant no.1 agreed to bring down thebribe amount to Rs.2,000/- and accepted Rs.1,200/-. Rs.800/- wasthe balance amount. Complainant approached Anti CorruptionBureau (ACB) authorities, lodged report and in consequence to ittrap was planned, procedure was explained to complainant andpancha PW1 Baburao. They both approached appellant no.1.Complainant questioned whether mutation entry has been taken.Appellant no.1 counter questioned whether amount has beenbrought. When complainant affirmed it, appellant no.1 directedamount to be paid to appellant no.2, who was sitting next to him.Predetermined signal was relayed and raiding party apprehendedboth accused. Investigating Officer filed complaint and charge-sheeted both accused. Trial was conducted by Special Judge, Parbhani, whoaccepted the prosecution case as proved, vide judgment and orderdated 29.12.2003, convicted both appellants i.e. for offence undersections 7 and 13(1)(d) punishable under section 13(2) andsection 12 of Prevention of Corruption Act, respectively. -3- Cri.Appeal.79.2004 Feeling aggrieved by the above judgment and order,instant appeal has been preferred.EVIDENCE BEFORE TRIAL COURT3. PW1 Baburao is a pancha, justified about being calledto ACB office, introduced to complainant Rangnath Chavan andbeing informed about Talathi demanding Rs.5,000/- for effectingmutation entry and finally deal being stuck for Rs.2,000/- andcomplainant informing this witness about amount of Rs.1,200/-already paid and remaining to be paid on 01.08.1998. He testifiedabout ACB authorities explaining the procedure of application ofanthracene powder to the currencies, necessary instructions givenby ACB to him and complainant for effecting raid. He deposed that,he and complainant, approached Talathi office, but appellant wasnot available in the office and they learnt that he was at hisresidence. So they both went to his house at Ganeshnagar. Hedeposed that, accused no.1 was sitting on a cot and accused no.2was sitting on a chair. Complainant asked about his work andaccused Talathi asked complainant whether he brought amount asdirected. Complainant took out the money, but accused Talathiinstead of himself receiving by nodding his head directed it to bepaid to accused no.2, who received the amount. After whichcomplainant went out and gave signal and raiding party came andapprehended both accused.
Legal Reasoning
-4- Cri.Appeal.79.2004 PW2 Ashok - Sanctioning Authority, who was workingas Sub Divisional Officer at Hingoli, testified about receiving papersfrom ACB, finding case made out for grant of sanction, he accordedsanction, which he identified to be at Exh.60. PW3 Vasant Bacchav, Divisional Controller, StateTransport, Parbhani deposed about receiving papers from ACB andbeing competent authority to accord the sanction to prosecuteaccused no.2 Dasrao Suryawanshi. PW4 Rajendra More, the Investigating Officer, whonarrated all step taken by him since receiving complaint, layingtrap, executing it, apprehending accused and charge-sheetingthem.SUBMISSIONSOn behalf of Appellant : 4.Learned counsel apprised this court about prosecutionversion and would submit that, there is no dispute that, appellantno.1 was officiating as Talathi. He pointed out that, here,prosecution evidence is without complainant’s evidence. Accordingto him, therefore testimony of shadow pancha and sanctioningauthority only remains for appreciation. He would strenuouslysubmit that very foundational facts of demand which are sine quanon has not been proved by prosecution for want of testimony of -5- Cri.Appeal.79.2004complainant. According to learned counsel, pancha has hearsayinformation, and therefore, it was not open for prosecution to relyon uncorroborated testimony of pancha and thereby he questionsthe very prosecution itself.5.Learned counsel next submitted that, there is noevidence that, for carrying out mutation entry, there was demandor even part payment. That, no circumstances are brought onrecord to substantiate visit of deceased complainant to appellantTalathi. He pointed out that, at the threshold granting mutationentry was not within the jurisdiction and power of appellant, whowas a Talathi, rather it was the duty of higher revenue authorities,and therefore, according to learned counsel very aspect of demandhas come under shadow of doubt.6.He further pointed out that, prosecution’s evidenceitself shows that there was no acceptance by appellant no.1., evenpancha witness admits that, amount was not accepted by appellantno.1 Talathi and therefore learned counsel questions theimplication and guilt, as according to him, here, both demand andacceptance, which are sine qua non for recording the guilt, are notproved. -6- Cri.Appeal.79.20047.Learned counsel’s second attack was on the sanctionaccorded by PW2 S.D.O. Ashok Singare for prosecution of appellantno.1. Apart from questioning the authority and power of PW2S.D.O. Singare to grant sanction, he would forcibly submit that,there is non application of mind and sanction is granted inmechanical manner. He invited attention of the court to the verysanction (Exh.60) and would submit that, title of the sanction itselfis shown to be a draft. Therefore, he submits that, there are strongreasons to hold that sanction has been granted without properverification or application of mind. 8.As regards to appellant no.2 is concerned, learnedcounsel submitted that, he is admittedly at the relevant timeworking in State Transport Department. He had no nexus withrevenue department. That, there is no material on behalf ofprosecution to show nexus between appellant nos.1 and 2. Learnedcounsel emphasized that, to connect appellant no.2, it wasexpected of prosecution to prove that with complete knowledge hehad accepted the bribe amount. Learned counsel pointed out that,there is no evidence to show that, the appellant no.2 had noknowledge as to whether the amount he took that day was towardsillegal gratification. That, there is nothing to show that he wasacting on behalf of appellant no.1. Consequently, learned counsel -7- Cri.Appeal.79.2004questions his implications and also brought to the notice that evenin sanction accorded to him by PW3 Vasant Bacchav, draft hasbeen approved and dispatched and as like that of appellant no.1,his sanction is also without application of mind.9.Lastly, he submitted that, in the light of above qualityof evidence, prosecution has miserably failed to establish not onlydemand, but even acceptance by adducing cogent and reliableevidence. According to him, still learned trial Court accepted theprosecution version and erred in convicting appellants and so heprays to interfere by allowing the appeal. On behalf of State :- 10.Learned APP would point out that, thoughunfortunately complainant had expired and was not available forevidence, but it is submitted that through the very complaint towhich PW1 Baburao was also a signatory, prosecution version iscogently proved. Learned APP took this court through thetestimony of PW1 Baburao and would submit that, he hadinteracted with complainant. He had participated in the process ofinstructions given by Investigating Officer while planning andexecuting the raid. That, he accompanied complainant and is partyto the demand by accused no.1 and acceptance by accused no.2 on -8- Cri.Appeal.79.2004direction of accused no.1. Therefore, trap is successful. That,accused no.2 acted on instructions of accused no.1. That, they bothbeing public servants, prior sanction for prosecuting them wasobtained. According to learned APP, both sanctioning authorities ofaccused nos.1 and 2 are explained by prosecution. That, there isevidence of Investigating Officer. That, their versions have notbeen rendered doubtful, and therefore, according to learned APP,there is no illegality or perversity at the hands of learned trialJudge and consequently there are prayers for dismissal of appealfor want of merits.ANALYSIS11.Unfortunately, during pendency of trial, originalcomplainant Rangnath Chavan has expired and was thus notavailable for evidence. Consequently, evidence of prosecution iswithout testimony of original complainant. Very recently theHon’ble Apex Court in the case of Neeraj Dutta v. State (Govt. ofN.C.T. of Delhi), (2023) 4 SCC 731, has elucidated certainprinciples and manner of appreciation of trap cases in paragraphno.68, which are as under :-“68.…….“(a) Proof of demand and acceptance of illegal gratification by apublic servant as a fact in issue by the prosecution is a sine qua nonin order to establish the guilt of the accused public servant underSections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution -9- Cri.Appeal.79.2004has to first prove the demand of illegal gratification and thesubsequent acceptance as a matter of fact. This fact in issue can beproved either by direct evidence which can be in the nature of oralevidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand andacceptance of illegal gratification can also be proved by circumstantialevidence in the absence of direct oral and documentary evidence.(d) In order to prove the fact in issue, namely, the demand andacceptance of illegal gratification by the public servant, the followingaspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without therebeing any demand from the public servant and the latter simplyaccepts the offer and receives the illegal gratification, it is acase of acceptance as per Section 7 of the Act. In such a case,there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demandand the bribe giver accepts the demand and tenders thedemanded gratification which in turn is received by the publicservant, it is a case of obtainment. In the case of obtainment,the prior demand for illegal gratification emanates from thepublic servant. This is an offence under Section 13(1)(d)(i) and(ii) of the Act.(iii) In both cases of (i) and (ii) above, the offer by the bribegiver and the demand by the public servant respectively have tobe proved by the prosecution as a fact in issue. In other words,mere acceptance or receipt of an illegal gratification withoutanything more would not make it an offence under Section 7 orSection 13(1)(d), (i) and (ii) respectively of the Act. Therefore,under Section 7 of the Act, in order to bring home the offence,there must be an offer which emanates from the bribe giverwhich is accepted by the public servant which would make it anoffence. Similarly, a prior demand by the public servant whenaccepted by the bribe giver and inturn there is a payment madewhich is received by the public servant, would be an offence ofobtainment under Section 13(1)(d) and (i) and (ii) of the Act.”(e) The presumption of fact with regard to the demand and acceptanceor obtainment of an illegal gratification may be made by a court of lawby way of an inference only when the foundational facts have been -10- Cri.Appeal.79.2004proved by relevant oral and documentary evidence and not in theabsence thereof. On the basis of the material on record, the Court hasthe discretion to raise a presumption of fact while considering whetherthe fact of demand has been proved by the prosecution or not. Ofcourse, a presumption of fact is subject to rebuttal by the accused andin the absence of rebuttal presumption stands.(f) In the event the complainant turns 'hostile', or has died or isunavailable to let in his evidence during trial, demand of illegalgratification can be proved by letting in the evidence of any otherwitness who can again let in evidence, either orally or by documentaryevidence or the prosecution can prove the case by circumstantialevidence. The trial does not abate nor does it result in an order ofacquittal of the accused public servant.(g) In so far as Section 7 of the Act is concerned, on the proof of thefacts in issue, Section 20 mandates the court to raise a presumption thatthe illegal gratification was for the purpose of a motive or reward asmentioned in the said Section. The said presumption has to be raised bythe court as a legal presumption or a presumption in law. Of course,the said presumption is also subject to rebuttal. Section 20 does notapply to Section 13(1)(d)(i) and (ii) of the Act.”In the same judgment the Hon’ble Apex Court inparagraph no.70 has observed as under :-“70.……. In the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferentialdeduction of culpability/guilt of a public servant under Section 7 andSection 13(1)(d) read with Section 13(2) of the Act based on otherevidence adduced by the prosecution.”12.Thus, it is emerging that, here, complainant because ofhis demise is not available. In view of judgment of Hon’ble Apex Court,circumstances regarding demand and acceptance can also be taken -11- Cri.Appeal.79.2004into account in eventuality of evidence of complainant being notavailable. Therefore, prosecution ought to have at least broughtother circumstances in support of contention that on 30.07.1998,complainant had approached accused and above demand wasmade.13.Admittedly, even as per PW1 Baburao shadow panch,when complainant was about to handover currency, accused no.1allegedly gestured towards accused no.2 i.e. by nodding andthereafter, according to PW1 Baburao, accused no.2 accepted thecurrency. Such evidence itself shows that, there is no acceptanceby accused no.1. Admittedly, recovery of currency is frompossession of accused no.2, who was said to be sitting there.14.Second feature of the case is that, here, accused no.2,who was said to be in the company of accused no.1 on the day oftrap and though he is shown to have accepted the tainted currencyand it is recovered from him, it has not been demonstrated thataccused no.2 was acting in concert or directions of accused no.1and with specific knowledge that the amount taken by him wastowards illegal gratification, charge cannot be fastened againsthim. It is expected of prosecution to first prove that specificknowledge that the amount which he is receiving, was towards -12- Cri.Appeal.79.2004illegal gratification. This aspect is not proved. There is no evidencein this direction. Mere acceptance is not sufficient, as it is furtherexpected to be proved that acceptance was of bribe amount and nototherwise. Therefore, such evidence on record, renders case ofprosecution doubtful.15.As pointed out by learned counsel for appellants, here,there is mechanical sanction as both authorities PW2 Ashok andPW3 Vasant, who have accorded sanction to prosecute bothaccused nos.1 and 2, though deposed that they studied the papersreceived from Anti Corruption Bureau, they have admitted aboutreceiving draft sanction and surprisingly sanction orders are itselftyped with title as ‘Draft Sanction Order’. Therefore, there is nodue care on the part of both the authorities which gave reason tothe defence to agitate and lay stress on non application of mind,which does become obvious in view of above title of sanctionorders. Typing mistake at the hands of one authority can beunderstood, but surprisingly both authorities, who are distinctlyplaced and are two distinct departments, have typed the sanctionorders as ‘Draft Sanction Order’. This also is a good ground to doubtthe prosecution version on the point of sanction.16.In the considered opinion of this court, because of -13- Cri.Appeal.79.2004above lapses, case cannot be said to be proved beyond reasonabledoubt. There is no acceptance by accused no.1 and there is nocogent and reliable evidence that accused no.2 acted in concert atand on behalf of accused no.1 and with complete knowledge he hadaccepted the amount to be a bribe amount. Consequently, it is acase of benefit of doubt and the same goes to accused. 17.Perused the judgment. Apparently there is improperappreciation of evidence. The above discussion and featuresnoticed by this court on re-appreciation are not taken into accountby learned trial Judge and hence interference is called for. Hence,the following order :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to appellants, namely, (i)Vishwambhar s/o. Abaji Bharose and (ii) Dasrao S/o.Ramrao Suryawanshi in Special Case No. 03 of 1999 bylearned Special Judge, Parbhani on 29.12.2003 for theoffence under sections 7 and 13(1)(d) punishable undersection 13(2) and section 12 of Prevention of CorruptionAct, 1988, stands quashed and set aside. III)The appellants stand acquitted of the offence undersections 7 and 13(1)(d) punishable under section 13(2)and section 12 of Prevention of Corruption Act, 1988. -14- Cri.Appeal.79.2004IV)The bail bonds of the appellants stand cancelled.V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale