1 apeal[SECTION]5.02 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO. [SECTION]5 OF 2002 [ENTITY] s/o [ENTITY], Aged about 49 years, Occupation - Service, Resident of Pusad, Taluka - Pusad, District - Yavatmal. APPELLANT VERSUS The [ENTITY], through Anti Corruption Bureau, Yavatmal, District Yavatmal. RESPONDENT Shri [ENTITY], Advocate for the appellant, Shri [ENTITY], Addl.P.P. for the respondent. CORAM : [ENTITY], J. DATED : 10 AUGUST, 2017. th ORAL JUDGMENT :
This appeal is directed against the judgment and order dated 25-02-2002 in [CASE NUMBER] delivered by the learned Special Judge, Pusad, convicting the appellant (hereinafter referred to as the "accused") for the offence punishable under [SECTION] of the [ACT] (hereinafter referred to as the 2 apeal[SECTION]5.02 "Act") and the offence punishable under [SECTION] of the said Act. The accused is sentenced to suffer rigorous imprisonment for two years in addition to payment of fine of Rs.1,000/- for each of the offences, the sentence is, however, to run concurrently.
2. The prosecution case, as is culled out from the complaint lodged by [ENTITY] dated 07-06-1993 is that the complainant was working as tracer in the office of Public Works Department, Division-2, Amravati till 20-06-1992. He was transferred to the office of the Public Works Department, Sub-Division Darwha by order dated 05-06-1992 and was relieved on 20-06-1992. The complainant felt ill and could not join duties immediately. He recovered from illness and joined duties at the office of Public Works Department, Sub-Division Darwha on 03-09-1992. However, one Shri [ENTITY] in whose place the complainant was posted had obtained a stay to the transfer order with the result that both the complainant and [ENTITY] were working at the said office. Since two posts were not sanctioned, the complainant was transfered to the office of Public Works Circle, Yavatmal, pursuant to which transfer order, the complainant joined duties in the office of Public Works Circle at Yavatmal on 16-11-1992.
3 apeal[SECTION]5.02
3. It is the case of the prosecution that on 19-09-1992 the complainant submitted an application to the [ENTITY] requesting that his salary for the period of posting at Darwha be released. According to the complainant, he submitted another application on 16-10-1992 making a similar request. The complainant claims to have met the accused sometime in April 1993 at the office of the Public Works Circle at Yavatmal in the presence of Shri [ENTITY]. a senior clerk in the said offence. The complaint claims that the accused was requested by the complainant to get the complainant's sick leave sanctioned and to release the salary. The accused avoided the issue. The oral report further states that vide letter dated 26-2-1993 the Superintending Engineer, Public Works Circle, Yavatmal had informed the [ENTITY] that the sick leave of the complainant from 22-6-1992 to 02-9-1992 be sanctioned and that the salary for the period from 02-9-1992 till 15-11-1992 be released. A copy of the letter issued by the Superintending Engineer to the Executive Engineer was marked to the complainant. The complainant accordingly went to Pusad on 29-5-1993 and met the accused who was working as a senior clerk. The complainant requested the accused that the sick leave be sanctioned and the salary be released. The accused 4 apeal[SECTION]5.02 asked the complainant to pay an amount of Rs.200/- assuring that he would soon put up the note-sheet for sanction of the sick leave and the payment of the salary. The complainant was asked by the accused to come to the office of the [ENTITY] with an amount of Rs.200/- on 08-6-1993. The complainant was unwilling to pay the illegal gratification and lodged the oral complaint Exhibit [SECTION].
4. The case of the prosecution which is further unfolded during the trial is that pursuant to the oral report Exhibit [SECTION], the Anti Corruption Bureau made elaborate preparations to lay the trap. Panch witnesses were summoned who were issued the necessary instructions and given the usual demonstrations. The shadow panch who is examined as P.W.2 accompanied the complainant to the office of Public Works Department, Pusad. The complainant who is examined as P.W.1 and shadow panch who is examined as P.W.2 met the accused at about 1.15 p.m. and made enquiries about the sanction of the leave and payment of salary in response to which the accused showed the complainant the note-sheet and informed that the signature of the Executive Engineer is to be obtained. The accused alongwith the complainant and the shadow panch came out of the 5 apeal[SECTION]5.02 office and had tea at a tea stall. No conversation ensued at the tea stall and the complainant and the shadow panch proceeded towards the office alongwith the accused. Near the gate of the office the complainant told the accused that as per his direction, he has come prepared. The accused told the complainant to give the amount and accordingly the complainant gave the amount to the accused. The complainant gave the predetermined signal, pursuant to which the trap party arrived at the spot and apprehended the accused. The fingers of the left hand of the accused were dipped in the sodium carbonate solution and the phenolphthalein test was positive. The completion of the investigation led to charge-sheet being presented in the Court of the learned Special Judge. The accused pleaded not guilty and claimed to be tried.
5. The learned trial Court framed charge vide Exhibit 5, on 26-4-2001. The prosecution examined five witnesses including the complainant and the shadow panch. The defence of the accused is of total denial as is evident from the statement recorded under [SECTION] of the [ACT].
6. The learned Special Judge was pleased to record a finding 6 apeal[SECTION]5.02 of guilt inter alia holding that in view of the acceptance of the illegal gratification the statutory presumption under [SECTION] of the Act comes into play and the accused has failed to rebut the same.
7. Shri [ENTITY], learned Counsel for the accused submits that the judgment impugned is vitiated by serious and glaring errors of facts and law. He would submit that the learned Special Judge has committed a serious error in holding that the statutory presumption under [SECTION] of the Act can be drawn on the proof of acceptance of the illegal gratification. The learned Counsel would further submit that it is a settled position of law that proof beyond reasonable doubt that the accused had demanded and voluntarily received the illegal gratification is a condition precedent for constituting offence punishable under [SECTION] and [SECTION] of the Act. The learned Counsel would urge that the evidence on demand is not only sketchy, is wholly unreliable. The offence under the Act is no different from any other offence and the golden rule that the accused is presumed to be innocent till the guilt is established beyond reasonable doubt applies with equal rigor to offences under the Act. The learned Counsel would urge that there is no reliable evidence to suggest that the accused demanded illegal gratification and that even if 7 apeal[SECTION]5.02 it is assumed arguendo that the tainted currency notes were recovered from the accused, the sine qua non for the constitution of the offence under [SECTION], [SECTION] and [SECTION] of the Act is not proved.
8. Per Contra, Shri [ENTITY], learned Additional Public Prosecutor would urge that the prosecution has proved that the accused demanded illegal gratification and voluntarily accepted the same. The learned Special Judge cannot be faulted for invoking the statutory presumption and recording a finding that the accused failed to rebut the same. The learned Additional Public Prosecutor would urge that the evidence of the complainant/P.W.1 is corroborated by the evidence of the shadow panch/P.W.2 and by the recovery of the tainted currency notes from the accused.
9. I have given my anxious consideration to the evidence on record and the judgment impugned. I am not persuaded to hold that the prosecution has brought home the charge under [SECTION], [SECTION](1)
(d) and [SECTION] of the Act beyond reasonable doubt. The prosecution, in my opinion, has miserably failed to prove that the accused demanded illegal gratification. The evidence adduced to prove acceptance is wholly unreliable and inadequate to bring home the charge.
8 apeal[SECTION]5.02
10. It is too well settled that the demand for bribe money is sine qua non to constitute an offence under [SECTION], [SECTION] and [SECTION] of the Act and that mere recovery of the currency ipso facto would not prove the charge against the accused in the absence of irrefutable evidence to prove the demand. It would be apposite to make a reference to a relatively recent judgment of the Hon'ble Apex Court in [PRECEDENT]. The relevant paragraphs 35, 36 and 37 read thus :
"35. It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under [SECTION] and [SECTION] o the [ACT]. The same legal principle has been held by this Court in [ENTITY], [ENTITY] and [ENTITY] upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.
36. The relevant para 7 from [ENTITY] case reads thus :
(SCC p.58).
"7. Insofar as the offence under [SECTION] is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under [SECTION] unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in [PRECEDENT] [PRECEDENT]."
(emphasis supplied) 9 apeal[SECTION]5.02
37. In [ENTITY], it was held by this Court as under: (SCC p.159, paras 21-23) "21. In [PRECEDENT], this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of [SECTION] and [SECTION] of the Act, it has been underlined in [ENTITY] in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under [SECTION] of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under [SECTION] and [SECTION] of the Act. Qua [SECTION] of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under [SECTION] and not to those under Section [SECTION]
(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under [SECTION] of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under [SECTION] and [SECTION](1) (d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, 10 apeal[SECTION]5.02 dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under [SECTION] or [SECTION] of the Act would not entail his conviction thereunder." (emphasis supplied)
11. Equally eloquent and eliminating are the observations of the Hon'ble Apex Court in [ENTITY] (Since Deceased) through his [PRECEDENT] in paragraphs 14, 15 and 25, which read thus :
"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under [SECTION] and [SECTION] of the Act, has by now engaged the attention of this Court on umpteen occasions. In [ENTITY] vs. State of Kerala, this Court propounded that the 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. Carrying this enunciation further, it was exposited in [PRECEDENT] that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
15. In [ENTITY] (supra), this Court took note of its verdict in [ENTITY] vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an 11 apeal[SECTION]5.02 offence under [SECTION] as well as Section [SECTION](i) and
(ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under [SECTION] and [SECTION] of the Act, it was held as well qua [SECTION] of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in [ENTITY] (supra) on a survey of its earlier decisions on the pre-
requisites of [SECTION] and [SECTION] and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under [SECTION] of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under [SECTION] and [SECTION] of the Act would not entail his conviction thereunder.
25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the
12 apeal[SECTION]5.02 person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. [ENTITY], has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector [ENTITY], the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. 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 under [SECTION] or [SECTION] of the Act."
12. I may now proceed to appreciate the evidence on record on the touchstone of the exposition of law in the judgments noted supra.
[SECTION]. P.W.1 is the complainant [ENTITY]. He states that he applied for leave salary from 26-2-1992 to 03-9-1992. P.W.1 states that the accused who then was working as a Clerk at the Public Works Department, Pusad had come to Yavatmal. P.W.1 claims to have met the accused at Yavatmal. P.W.1 further claims that the accused told [SECTION] apeal[SECTION]5.02 him to come to Pusad and that the accused will draw the leave salary of P.W.1. The complainant/P.W.1 states that he accordingly went to Pusad and met the accused and the accused demanded Rs.200/- towards expenses. P.W.1 asked the accused as to when P.W.1 should come and the response was that P.W.1 should come on 08-6-1993. P.W.1 states that he lodged the oral report with the Anti Corruption Bureau on 07-6-1993 (Exhibit [SECTION]). This is the only reference in the examination-in-chief to the alleged initial demand. P.W.1 further deposes that on 08-6-1993 he and the shadow panch P.W.2 met the accused at Public Works Department, Yavatmal. P.W.1 states that he asked the accused about the leave salary. The accused showed P.W.1 the note-sheet of leave salary and told him that the signature of the Executive Engineer is to be obtained. P.W.1 further deposes that he and the accused came out to have tea. The tea stall was crowded and no talks were held. P.W.1 and the accused approached the gate of the office and P.W.1 told the accused that as per the directions of the accused he had come prepared. P.W.1 states that the accused told him to give amount and accordingly he gave the amount to the accused. P.W.1 states that he gave the predetermined signal and the trap party arrived at the spot and recovered the currency notes which the accused had thrown alongwith the file.
14 apeal[SECTION]5.02 It is brought out on the cross-examination of P.W.1 that there was already a direction issued by the Superintending Engineer, Yavatmal to the Executive Engineer, Pusad to draw the salary after sanctioning the leave. The accused admits that one clerk in the office of the [ENTITY] maintained the leave account and other clerk dealt with pay account. The payment or drawing of salary was to be certified by the Divisional Accountant and then the [ENTITY] would sanction the leave and the payment of salary. The version of the complainant/P.W.1 that he met the accused at Yavatmal and the accused told that he will draw the leave salary of the complainant does not inspire confidence. The accused was one of the two clerks. The note-sheet was to be certified by the Divisional Accountant and then placed before the Executive Engineer for approval and sanction. The oral complaint is lodged on 07-6-1993. The Superintending Engineer had already directed the Executive Engineer that the sick leave of P.W.1 should be sanctioned and that the salary should be released. According to the oral complaint/first information report, a copy of the said letter was forwarded to the complainant/ P.W.1. In this backdrop, the version of P.W.1 that when he met the accused at Yavatmal, the accused told him that he would release the 15 apeal[SECTION]5.02 salary in consideration of the payment of Rs.200/- towards expenses, is wholly unbelievable. The evidence on initial demand is sketchy, sans particulars and unreliable. P.W.1 does not disclose as to when he met the accused at Yavatmal. In the examination-in-chief, all that is said by P.W.1 is that the accused told P.W.1 to come to Pusad and he will draw the salary. The examination-in-chief of P.W.1 is totally silent on the date and the circumstances in which the alleged conversation took place. The version that P.W.1 approached the accused and was told to come to Pusad and was further told that the accused shall release the salary in consideration of payment of expenses of Rs.200/- is inherently incredible. The prosecution has miserably failed to prove the initial demand. Testimony of P.W.1 on the alleged demand on 08-6-1993 is equally unreliable. P.W.1 claims that when he met the accused and asked about the leave salary, he was shown the note-sheet and told that the signature of Executive Engineer is to be obtained. P.W.1 further states that he and the accused had a cup of tea at the tea stall and there was no talk of any payment at the tea stall. P.W.1 states that when he and the accused came to the gate of the office, it was P.W.1 who told the accused that as per the direction of the accused, P.W.1 had come ready. P.W.1 states that thereafter he was told by the accused to give the amount. In the cross-examination, it is 16 apeal[SECTION]5.02 brought out that when the accused and P.W.1 were walking towards the office the clerks and the shadow panch were behind them. The accused was on right side of P.W.1 and was holding a diary and some papers in his left hand. P.W.1 admits in the cross-examination that while walking towards the office, he told the accused that he had come ready as directed and kept the amount in the left hand of the accused with the papers and that when he gave the signal, the accused said 'what is this' and threw the amount from the papers by hand.
14. The testimony of P.W.1 does not prove that the accused demanded illegal gratification. On the contrary, P.W.1 states that he told the accused that he has come prepared and kept the amount in the left hand of the accused. There is absolutely no whisper in the entire testimony of P.W.1 that the accused demanded illegal gratification on 08-6-1993.
15. The shadow panch is P.W.2. P.W.2 has supported the prosecution to the extent that he states that when P.W.1, accused and P.W.2 were returning to the office after having tea, P.W.1 told the accused that he had come ready as per the directions of the accused and the accused told him to give the amount. P.W.2 states that the 17 apeal[SECTION]5.02 accused was carrying papers and he accepted the amount with the papers.
16. I do not find the testimony of P.W.2 trustworthy. P.W.2 was following P.W.1/complainant and the accused. P.W.1 has not stated anything about any demand made by the accused muchless that the accused told him to give the amount. Even according to the prosecution witnesses, the accused was walking on the right side of the complainant/P.W.1 and was carrying diary and papers in his left hand. I do not find it natural or believable that P.W.1 gave the amount to the accused and the accused received the amount voluntarily with his left hand whilst holding the diary and the papers.
17. It is an established position of law that the complainant and the panch witnesses are partisan witnesses since they are interested in the success of the trap. In Pannalal Damodar Rathi vs. [ENTITY], 1988 SCC (Criminal) 121, the Hon'ble Apex Court has propounded that after the introduction of [SECTION] of the [ACT], a person who offers bribe is guilty of abetment and the testimony of such person cannot be on a better footing than that of an accomplice. I am not in a position to hold that the 18 apeal[SECTION]5.02 prosecution has proved the offences beyond reasonable doubt. The evidence is to sketchy, unreliable and grossly inadequate, both on the demand and acceptance of illegal gratification. Suspicion, however, strong cannot be permitted to substitute proof.
18. The learned Special Judge was not justified in invoking the statutory presumption under [SECTION] of the Act. The presumption is invoked on the premise that the recovery and therefore, the acceptance of illegal gratification is proved. I am afraid, such a view militates against settled legal position. In the absence of proof of demand of illegal gratification, it is wholly impossible in law to invoke the statutory presumption under [SECTION] of the Act.
19. The judgment impugned passed by the learned Special Judge, Pusad on 25-2-2002 in [CASE NUMBER] is unsustainable in law and is set aside. The appellant is acquitted of the offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT]. His bail bond shall stand discharged. Fine paid, if any, by the appellant shall be refunded to him.
19 apeal[SECTION]5.02 The appeal is disposed of accordingly.
JUDGE adgokar