[ENTITY] 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.341 OF 2002 [ENTITY], Aged 56 years, Occupation: P.W.I Railway Vathar Railway Station, District Satara. APPELLANT V E R S U S 1] [ENTITY]. 2] [ENTITY]. RESPONDENTS Shri [ENTITY], Senior Advocate assisted by Mr. [ENTITY], Advocate for Appellant. Mrs. [ENTITY], APP for Respondent No.1. CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 28.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 19.12.2017 1] Challenge is to the judgment dated 17.06.2002 in
[CASE NUMBER] delivered by the Additional Sessions Judge and Special Judge, Akola, by and under which, the appellant (hereinafter referred to as "the accused") is convicted of offence punishable under [SECTION] of the [ACT] and under [SECTION] of the [ACT] and is sentenced to suffer rigorous imprisonment for six months and rigorous imprisonment for one year for the said offences, respectively. The accused is further sentenced to payment of fine of Rs.1000/- for each of the offences. 2] Heard Shri [ENTITY], the learned Senior Counsel for the accused and Mrs. [ENTITY], the learned Additional Public Prosecutor for the respondent 1. 3] The genesis of the prosecution case is in the complaint dated 14.12.1987 (Exh.76) lodged by [ENTITY], the gist of which is as under:
[ENTITY] (hereinafter referred to as the complainant or P.W.1) states that he is working in South Central Railway at Akot as a Gangman. The complainant states that by letter dated 30.11.1987 he was informed of his selection as an Electric Khalashi in the workshop of the Divisional Electrical Engineer at Lalaguda and the letter further states that should he failed to join duty till 15.12.1987 his name will be deleted from the selection list. The complainant states that at 7 O'clock in the morning on 10.12.1987 he asked the accused as to when he would be relieved and was told by the accused that he would not be relieved till the General Manager special inspection is done. The next relevant statement in the complaint is that on 12.12.1987 the complainant came to know that the Senior Divisional Engineer, Hyderabad was to come to Akot, and the complainant intended to submit an application to the said Officer for being relieved early. However, the complainant felt that he should met the accused again before submitting the application to the said Officer. The complainant met the accused near the gate on the road and told him to kindly relieve the complainant before 15.12.1987. The complainant states that at that point in time, the accused demanded Rs.200/-. The complainant states that he returned to his house, prepared an application in duplicate addressed to the Senior Divisional Engineer and waited at the Railway Station. At about 06:30 to 07:00 in the evening, the Senior Divisional Engineer arrived there by 51 down Khandwa to Purna train. The S.D.E. disembarked from the train, the accused was present, the complainant apprised the Sub-Divisional Engineer of the contents of the application and then handed over the application to the said Officer. The Senior Divisional Engineer returned the application to the complainant and asked the accused to relieve the complainant tomorrow ([SECTION].12.1987). The next material statement in the complaint is that on [SECTION].12.1987 that since the complainant was not relieved till [SECTION].12.1987, he was certain that the accused will not relieve him till Rs.200/- is paid to the accused.
Pursuant to the said complaint dated 14.12.1987, a trap was arranged, which was to be executed on 15.12.1987. The panchas were summoned, the necessary instructions were issued and the usual demonstrations given. However, the trap was unsuccessful. The version of the complainant is that he inquired with the accused about the relieving order and also informed the accused that the money was brought as asked by the accused. However, the accused told the complainant that he did not want any money and further told the complainant that he would be relieved only when he obtained a letter of the A.E.N. 4] The additional complaint lodged by the complainant at 05:30 p.m. on 15.12.1987 alleges that the complainant came to Akola from Akot by 581 down Ajmer Kachiguda passenger train and disembarked at platform 5 between 03:00 to 03:30 p.m. The complainant came to platform 4 where he met one [ENTITY], Trolley-Man resident of Akot. [ENTITY] conveyed to the complainant the message of the accused to the effect that the complainant need not go to the office of the Assistant Engineer and that he will be relieved tomorrow. [ENTITY] further conveyed to the complainant that the accused has asked whether he has brought the money. The complainant told [ENTITY] that the money was returned to the person from whom the hand loan was obtained. The next material statement is that the complainant and [ENTITY] met the accused, the complainant asked the accused as to what happened to the relieving order and the accused told the complainant that if Rs.200/- is brought, the complainant will be relieved in the morning tomorrow (16.12.1987). The complainant further states that the accused was adamant that unless the money is paid the relieving order will not be issued and ultimately the complainant agreed to make the payment in the office. The complainant also submitted an application to the accused for grant of two days leave i.e. for 15.12.1987 and 16.12.1987 and was told by the accused that the sanction order for the leave will be issued along with the relieving order when the complainant meets the accused the next day with the money. The additional complaint states that the entire conversation occurred took place in the presence of [ENTITY] Trolley-Man.
5] On the basis of the additional statement again trap was arranged on 16.12.1987. The complainant and the shadow panch [ENTITY] went to the office of the accused, the accused asked the complainant as to who was the shadow panch and the complainant told the accused that he was the brother-in-law of the complainant. The complainant asked the accused about the relieving and told the accused that the money is brought as per his say. The response of the accused was that the complainant should go to his home and give the money to his wife. The complainant and the shadow panch came out of the office and sat on the bench. The complainant did not go to the residence of the accused. The accused sent one [ENTITY] to inquire if the money is handed over to his wife. The complainant informed [ENTITY] that he did not give money to the wife of the accused. [ENTITY] again returned and asked the complainant as to why the money was not given and the complainant told [ENTITY] that he would not pay money to a woman. [ENTITY] then told the complainant to meet the accused.
The complainant told the accused that today was the last day and that he would not be allowed to join duty and that the complainant has brought as asked. The accused extended his left hand, the complainant gave the amount to the accused who accepted the amount and kept in left shirt pocket. The accused asked the complainant to go outside and told the complainant that he would give a letter. The complainant came out, gave the predetermined signal, then the complainant was called inside the office of the accused, the complainant went inside the office of the accused. The accused asked the complainant as to when he would be leaving and the response of the complainant was that there was no train, he would leave early in the morning. The accused told the time-keeper the letter will be issued to the complainant in the morning. By that time, the raiding party arrived and the accused was apprehended.
On the basis of the complaint and the alleged demand and the acceptance of the illegal gratification, First Information Report was registered, investigation were undertaken and after obtaining the statutory sanction the charge-sheet was submitted in the Court of the Special Judge. The Special Judge framed charge under [SECTION] of the [ACT] and under [SECTION] of the [ACT], the accused pleaded not guilty and claimed to be tried. The defence of the accused is of false implication. A specific defence is taken in the statement recorded under [SECTION] of the [ACT] that the amount of Rs.200/- was the refund of hand-loan extended by the accused to the complainant. 6] Shri [ENTITY], the learned Senior Counsel for the accused submits that the sine qua non for constituting offence under the provisions of the Act, which is that the accused demanded illegal gratification, is not proved beyond reasonable doubt. The accused has more than probablized the defence that the amount of Rs.200/- was the loan extended to the complainant and not illegal gratification, is the next submission. The learned Senior Counsel would submit that the testimony of the complainant and the panch witnesses must be tested with caution since they are partisan witnesses who are interested in the success of the trap. He would further submit that the accused must be presumed to be innocent till the guilt is conclusively established by the proof that the accused demanded and accepted the illegal gratification. The settled law is that an accused under the provisions of the Act cannot be treated differently than accused facing prosecution under any other penal provision, is the submission. Reliance is placed in [PRECEDENT].
7] Per contra, the learned A.P.P. submits that the prosecution has established demand of illegal gratification and acceptance thereof, beyond any reasonable doubt. The learned A.P.P. submits that the acceptance of Rs.200/-, is not seriously challenged. The learned A.P.P. further submits that the defence that the amount accepted was towards refund of the hand-loan is not probable much less credible. The learned A.P.P. would submits that the judgment impugned does not suffer from any infirmity. 8] Having given my anxious consideration to the evidence on record and the submissions of the learned counsel for the accused and the learned A.P.P, I find myself in agreement with the submission that the prosecution has not established that the accused demanded and accepted illegal gratification of Rs.200/-, beyond reasonable doubt.
9] The case of the prosecution has too many shades of grey for this Court to record a finding that the offence is established beyond reasonable doubt. The complainant is examined as P.W.1. The version of the complainant is that the amount of Rs.200/- was demanded by the accused to issue the relieving order. The complainant was working as a Gangman and was selected as a Khalashi in Senior Divisional Electrical Engineer, Lalaguda workshop. The complainant has deposed that on 10.12.1987he was informed by the accused that the complainant will be relieved only after the departure of the General Manager (Special) inspection train. He deposes that on 12.12.1987 he was assumed by the Senior Divisional Engineer of Akot section that he will be relieved on [SECTION].12.1987. Th version of the complainant is that the Senior Divisional Engineer of Akot section directed the accused to relive the complainant on [SECTION].12.1987. The complainant has deposed that although he contacted the Senior Divisional Engineer on 12.12.1987, prior to that the accused demanded Rs.200/- as illegal gratification for relieving the complainant. The complainant then deposed that he lodged the report with the Anti Corruption Bureau, Akola (ACB) on 14.12.1987. The trap was arranged on 15.12.1987. Concededly, even according to the complainant, the accused refused to accept the money and indeed told the complainant that he did want any money and that he would be relieved if a letter of A.E.N. is obtained. The complainant then deposes that on 15.12.1987, he received a message through [ENTITY], who was working as a Trolley-Man, that the complainant should pay money to the accused. The complainant and the said [ENTITY] met the accused and the accused asked the complainant whether the money is brought, is the deposition. The complainant states that he assured the accused that the money will be arranged till 02:00 p.m. on 16.12.1987. The complainant then lodged a fresh report with the A.C.B. On the basis of the second complaint, trap was arranged on 16.12.1987. The complainant has deposed that he and the shadow panch one [ENTITY] P.W.2 met the accused in the office and the complainant asked the accused about the relieving order and further told the accused that the money is brought as per his say. The accused told the complainant to go to his residence and give the money to his wife it is the version of the complainant that he was not inclined to bribe amount to a woman. The evidence of P.W.1 that the accused asked him to go his residence and handed over bribe amount to his wife is difficult to believe. The accused, who is a Senior Officer asking a Gangman to go to his residence and hand over the bribe amount to his wife, is not a natural conduct. The complainant P.W.1 has deposed that since he did not go to the residence of the accused, the accused sent one [ENTITY] to inquire with the complainant whether the money is given to the wife of the accused. The complainant P.W.1 has deposed that he told [ENTITY] that he did not give the money to the wife of the accused and then [ENTITY] came back with a message that the complainant should meet the accused. [ENTITY] is however, not examined by the prosecution.
10] According to the complainant P.W.1, he and the shadow panch P.W.2 then went to the office of the accused, the complainant told the accused that today was the last day (to be relieved) and that he has brought as asked as said. The accused put his left hand before the complainant, the complainant handed over the tainted currency notes and accused accepted them by left hand and kept the notes in the shirt pocket. The shadow panch P.W.2 states that when he and P.W.1 [ENTITY] entered the office of the accused, the accused put his left hand before the complainant and before P.W.1 who had handed over the tainted currency notes to the accused. P.W.1 does not state that the accused told the complainant that he has brought as asked.
11] It is trite law that a decisive demand must be proved beyond reasonable doubt to bring home the charge under the provisions of the [ACT]. It would be apposite to note the observations of the Hon'ble Apex Court in [ENTITY] (Since Deceased) through his [PRECEDENT] and 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 [PRECEDENT], 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 [PRECEDENT] (supra), this Court took note of its verdict in [PRECEDENT] underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under [SECTION] as well as [SECTION] 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 [PRECEDENT] (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] and [SECTION](1)(d)(i) and
(ii) 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 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 have given my anxious consideration to the evidence on record, and as I have observed earlier, the prosecution case is not confidence inspiring. According to P.W.1, the initial demand was made on 12-12-1987. However, although P.W.1 met the superior officer who was on inspection on the next day i.e. on [SECTION]- 12-1987, P.W.1 did not apprise him of the demand. Concededly, an attempt was made by the complainant P.W.1 to pay the amount to the accused on 15-12-1987 and it is the case of P.W.1 himself that the accused refused to accept the amount. In this backdrop, it is not probable that the accused would ask the complainant P.W.1 to pay the amount of Rs.200/- to the wife of the accused by visiting the residence of the accused. As I have observed earlier, a senior officer asking a Class-IV employee to interact with his wife at the residence and that too, to handover illegal gratification to her, would be an abnormal conduct. [ENTITY], who according to the complainant P.W.1 conveyed the message from the accused, is not examined. The shadow panch does not speak of any demand muchless that of illegal gratification. What is stated by the shadow panch is that without there being any exchange of words the accused extended his hand and the complainant paid the amount. The evidence on record is not cogent and reliable enough to hold that the prosecution has proved a decisive demand beyond reasonable doubt. The defence that the amount accepted was towards refund of hand loan is more than probablised on the touchstone of preponderance of probabilities. [SECTION]] The impugned judgment and order is set aside. The The accused is acquitted of the offences punishable under [SECTION] of the [ACT] and [SECTION] of the [ACT]. The bail bond of the accused stands discharged. Fine, if any, paid by the appellant be refunded to him.
Appeal is disposed of accordingly.
JUDGE [ENTITY]/adgokar