High Court
Legal Reasoning
-1- Cri.Appeal.113.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 113 OF 2004Ram S/o. Munjaji Salgar,Age : 53 years, Occu. : Service,As Talathi Sajja – Naikota,Tq. Sonpeth, Dist. Parbhani,R/o. Naikota, Tq. Sonpeth,Dist. Parbhani.… Appellant (Orig. Accused)VersusThe State of Maharashtra,Through Anti Corruption Bureau,Parbhani.… Respondent (Orig. Complainant)…Mr. Sudarshan J. Salunke h/f. Mr. V. D. Salunke, Advocate for Appellant Mr. A.A.A. Khan, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 24th JULY 2024PRONOUNCED ON : 9th AUGUST 2024JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder of conviction recorded by learned Special Judge, Parbhanidated 10.02.2004 in Special Case No.06 of 2000, convictingappellant for offence punishable under sections 7, 13(1)(d)punishable under section 13(2) of the Prevention of CorruptionAct, 1988 (P.C. Act). -2- Cri.Appeal.113.2004PROSECUTION CASE IN NUTSHELL IS AS UNDER 2.Prosecution was launched against present appellant oncomplaint of PW1 Ambadas that he had approached accusedTalathi for effecting mutation in 7/12 extract incorporating entrieson the basis of a decree passed by the court. Accused Talathidemanded Rs.2,000/- for doing said work and there was settlementin Rs.900/-. Complainant was not willing to pay bribe and thereforehe approached ACB authorities and lodged report. On the basis of complaint, PW4 P.I. More summonedpanchas, introduced them to complainant, informed them aboutnature of complaint, panchas and complainant were explainedprocedure of trap and were instructed to go together to pay bribeon demand. Accused, after being approached by PW1 Ambadas andPW2 Shankar, put up a demand, complainant handed overdemanded amount i.e. tainted currencies, after which complainantgave signal and raid was carried out. Further which PW4 P.I. Morelodged report, carried out investigation and charge-sheetedaccused. Trial was conducted by Special Judge, Parbhani, whoaccepted the prosecution case as proved, vide judgment and orderdated 10.02.2004, convicted appellant i.e. for offence under -3- Cri.Appeal.113.2004sections 7 and 13(1)(d) punishable under section 13(2) ofPrevention of Corruption Act. Feeling aggrieved by the above judgment and order,instant appeal has been preferred, which is now questioned beforethis court by virtue of present appeal. EVIDENCE ON RECORD IN TRIAL COURT3.PW1 Ambadas, complainant, deposed that, after hedecided to effect mutation entry in the name of his son, heapproached accused Talathi and he advised him to seek ordersfrom the court and said that without orders of the court, he cannoteffect mutations, and thereafter, not finding him supporting, hewas cross examined by learned APP, wherein he denied demand ofRs.2,000/- by accused Talathi, there was settlement in Rs.900/-and thereafter he approached ACB office and lodged complaint. PW2 Shankar - shadow pancha, denied that in ACBoffice complainant told him that accused was demanded bribe foreffecting mutations and consequently finding shadow pancha alsonot supporting, by seeking permission of learned trial court,learned APP subjected prosecution’s own witness to cross examine.However, he also denied about complainant informing him in ACB -4- Cri.Appeal.113.2004office regarding demand of Rs.2,000/- from accused and ultimatelythe amount of bribe was settled at Rs.900/-. Consequently, he hasaccepted the procedure explained by ACB Officer and panchanamawas drawn. But, he again denied after going to the house ofaccused, while in company of complainant, the complainant askedhim whether mutation in respect of his land was effected or notand conversation of 7/12 extract, accused demanding bribeamount and it being paid by complainant. In fact he stated that,accused has received the amount given by complainant. He againadmitted that, accused received amount by his right hand and thencounted the said amount by both hands and kept it in his pocket.He admitted that, after raiding party entered, he pointed towardsaccused as the person receiving the amount. He identified thecurrency and also 7/12 extract seized by ACB authorities. PW3 Pimpalgaonkar is the Sanctioning Authority, whodeposed about working as S.D.O. Parbhani from the year 1999 to2001, receiving letter and papers from ACB for sanction ofprosecution. He deposed that, after perusal of the papers, he foundit a fit case to accord sanction and accordingly granted sanction. PW4 P.I. More is the Investigating Officer, who narratedall steps taken by him regarding receiving complaint, calling -5- Cri.Appeal.113.2004panchas, explaining procedure to complainant and panchas,planning and arranging raid, and on receiving signal fromcomplainant, successfully carrying out the trap, apprehendingaccused and regarding further steps taken by him till filing charge-sheet. SUBMISSIONS On behalf of Appellant :- 4.Pointing from above evidence, learned counsel forappellant submitted that, in this case prosecution has utterly failedto prove essential requirements of demand and acceptance. Hewould strenuously submit that, here, very complainant has notsupported the prosecution. That, even shadow pancha has notsupported the prosecution, and therefore, very essentials ofdemand and acceptance are not proved by prosecution. He tookthis court through the essential requirements of section 7 and13(1)(d) of P.C. Act and would submit that to prove the saidcharges, there has to be reliable and trustworthy evidenceregarding both, demand of illegal gratification as well asacceptance. That, as there is no proof of demand and acceptance,said charges cannot be said to be proved. He pointed out that, here,neither complainant nor the shadow pancha, who are starwitnesses of prosecution, have not supported the prosecution andtherefore case of prosecution has collapsed in trial court.
Legal Reasoning
-6- Cri.Appeal.113.2004 On the point of essential requirements for proving thecharges, learned counsel for appellant sought reliance on thefollowing rulings :- 1)P. Satyanarayana Murthy v. The Dist. Inspector of Police & Anr., 2015 ALL SCR 31712)Banarsi Dass v. State of Haryana, 2010 Cri.L.J. 2419 3)Sopan Kadu Choudhari v. State of Maharashtra, 2023 (3) ABR (CRI) 790On behalf of Respondent :-5.In answer to above, learned APP submitted that,unfortunately though complainant and pancha witness have notsupported, there is evidence of Investigating Officer and the case ofprosecution stood proved through him. He has received complaint,he had arranged and planned trap and also successfully executedthe same. That, accused was apprehended while in possession oftainted currencies. That, there is no explanation for saidpossession. Therefore, charges are cogently proved. According tohim, though prosecution witnesses have not supported,circumstances brought on record coupled with evidence ofInvestigating Officer, case of prosecution has been cogently proved.On this count, he seeks reliance on the judgment and order ofHon’ble Apex Court in the case of Neeraj Dutta v. State (Govt. ofN.C.T. of Delhi), (2023) 4 SCC 731. -7- Cri.Appeal.113.2004ANALYSIS6.Here, admittedly, PW1 Eknath - complainant hasretracted and resiled and has not supported prosecution. Likewise,PW2 Shankar - shadow pancha, who was party to the planning andarranging raid and even laying trap, has not supportedprosecution. In fact, he is flip-flop witness. Initially, he deniedcomplainant informing about demand and at one point of time headmitted that visit was paid to ACB authorities. He subsequentlydenied going through the contents of complaint. Therefore, thiswitness was fickle minded and is a flip-flop witness. Thus, evidenceof only Investigating Officer and Sanctioning Authority hasremained for consideration.7.Learned APP has sought reliance on the decision in thecase of Neeraj Dutta (Supra), wherein recently the Hon’ble Apexcourt has enunciated principles by discussing various precedentsin paragraph no.68 and the same could be summarized 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 prosecutionhas to first prove the demand of illegal gratification and the -8- Cri.Appeal.113.2004subsequent 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 beenproved by relevant oral and documentary evidence and not in the -9- Cri.Appeal.113.2004absence 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.”8.The ratio i.e. spelt out in paragraph no.70 of theaforesaid Judgment i.e. in absence of evidence of complainant, it ispermissible to draw an inferential deduction of culpability/guilt of apublic servant under section 7 and section 13(1)(d) r/w section13(2) of P.C.Act based on other evidence adduced by theprosecution. 9.On one hand, learned counsel for appellant strenuouslysubmit that, there is no cogent and reliable evidence about demandas well as acceptance and both star witnesses of prosecution havenot supported prosecution. While on the other hand, learned APP -10- Cri.Appeal.113.2004sought reliance on above rulings and would emphasize that merelybecause witnesses have turned hostile, there is no good ground toreject the prosecution version. According to him, the Hon’ble Apexcourt has held that even if the witnesses are hostile, if there iscorroboration to other aspect of the case, guilt can be judged andeven recorded.10.Admittedly, it is also fairly settled that, for establishingcharge of section 7 and section 13(1)(d) r/w section 13(2) of P.C.Act, proof of demand and proof of acceptance are sine qua non.Neither mere demand nor mere acceptance are itself sufficient tohold the charges as proved. In the above ruling, it has beenrecently observed that, in cases where witnesses have turnedhostile, still guilt can be recorded by taking recourse to othercircumstances. The fact that the witnesses are hostile does notresult in automatic rejection of the evidence. The Hon’ble Apexcourt has held that, when witness turns hostile, his entiretestimony need not be discarded, but so much part of the evidencewhich can be relied, can be put to use. 11.Keeping in mind such observations, if we revert back tothe case in hand, here, it is noticed that the complainant frominception itself has not supported the prosecution on the point of -11- Cri.Appeal.113.2004demand. Shadow pancha, whose testimony is looked upon as acorroborative piece of evidence, has also unfortunately turned hisback from prosecution and he has denied about complainantinforming in ACB office that there was demand of illegal bribe. Hehas categorically denied that instructions were given and that hesigned the complaint after verified it. Consequently, both starwitnesses, complainant and shadow pancha, have not supportedthe prosecution. Mere evidence that remained is of InvestigatingOfficer, but on sole testimony of Investigating Officer, unlessdemand and acceptance is conclusively proved, case of prosecutioncannot be accepted. Likewise, sanctioning authority has come intopicture at later point of time i.e. after all transactions which tookplace pre-trap and post trap. Role of sanctioning authority wasonly confined to administrative approval for sanction.12.Here, it is noticed that, though complainant hadallegedly approached ACB authorities, there is no verification ofvery demand prior to planning and executing trap. Whencomplainant and shadow pancha, who were the only star witnesseson the point of demand and acceptance, having resiled, in view ofabove recent law, other circumstances were expected to be provedby prosecution. But, here, no distinct circumstances to takerecourse to are brought to the notice of this court by the learned -12- Cri.Appeal.113.2004APP. It is also fairly settled that, mere possession of taintedcurrency from the accused is not itself sufficient to draw inferenceunless demand of illegal gratification has been demonstrated andsubstantiated. As stated above, evidence as regards to verydemand is here not getting proved. It is pointed out by learnedcounsel for appellant that, the work for which there was said to bedemand, was actually and already done prior to the episode ofalleged trap, and therefore, on such count also prosecution versioncomes under shadow of doubt. In the light of above submissions, itis noticed that, complainant’s work was already done prior toalleged trap. Consequently, here, there are no reliablecircumstances also to look into as held by the Hon’ble Apex courtin the above referred judgment.13.Perused the judgment. Learned trial court hasreproduced the contents of the complaint at Exh.37 and the sameare held to be proved through Investigating Officer PW4 P.I. Moreand on appreciating his testimony, learned trial court has acceptedprosecution version. Foundational facts, which were within theknowledge of complainant and shadow pancha, cannot be said to beestablished from the sole testimony of Investigating Officer.Consequently, for above reasons, appellant succeeds. -13- Cri.Appeal.113.200414.The above discussion and features noticed by this courton re-appreciation are not taken into account by learned trialJudge and hence interference is called for. Hence, the followingorder :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to Ram S/o. Munjaji Salgar inSpecial Case No. 06 of 2000 by learned Special Judge,Parbhani on 10.02.2004 for the offence punishableunder sections 7, 13(1)(d) punishable under section13(2) of the Prevention of Corruption Act, 1988, standsquashed and set aside.III)The appellant stands acquitted of the offence punishableunder sections 7, 13(1)(d) punishable under section13(2) of Prevention of Corruption Act, 1988.IV)The bail bonds of the appellant stands cancelled.V)The fine amount deposited, if any, be refunded to theappellant 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