.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.662 OF 2006 Gulabsing Mangalsing Likade, ] Age 32 years, Occ.Police Shipai, ] Residing at Mahatma Phule Chowk, ] Police Line Kalyan, District ] Thane. ] ..APPELLANT. Versus The State of Maharashtra. ] ..RESPONDENT. .... ALONG WITH CRIMINAL APPEAL NO.663 OF 2006 Janardan Yetala Shendage, ] Age 55 years, Occ.Asstt.Police ] Inspector, Residing at Vartaknagar] Building No.57/2629, Thane. ] ..APPELLANT. Versus The State of Maharashtra. ] ..RESPONDENT. .... Mr.Ganesh Gole, Adv. for the Appellants. Mr.V.B.Konde-Deshmukh, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 27th June, 2008. DATED : 27th June, 2008. DATED : 27th June, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through Criminal Appeal No.663 of 2006 the appellant - Janardan Yetala Shendage (orig.accused No.1) has impugned the judgment and order dated 29th June, 2006 passed by the learned Special Judge (P.O.C. Act), Thane in Special Case No.10 .(2). of 2004. Through Criminal Appeal No.662 of 2006 the appellant - Gulabsing Mangalsing Likade (orig.accused No.2) has impugned the very same judgment and order. By the said judgment and order, the appellants were convicted under Sections 7, 12, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. For the offence under Sections 7 & 13(1)(d) read with Section 13(2) both the appellants have been sentenced to suffer RI for one year each and fine of Rs.5000/- each in default SI for six months. For the offence under Section 12 accused No.2 Gulabsing Mangalsing Likade ( i.e. appellant in Cri.Appeal No.662 of 2006) has been sentenced to suffer RI for one year and fine of Rs.2000/- in default SI for three months. The learned Special Judge has directed both the substantive sentences of imprisonment to run concurrently. 2. The prosecution case, briefly stated, is as under :- . At the relevant time both the appellants were attached to Kumbharwada police station. Accused No.1 was working as Assistant Police Inspector and accused No.2 was working as police constable. The complainant PW-1 Mr.Hariya runs a .(3). powerloom factory at Bhivandi. There were ten workers in his factory. On 17.2.2003 there was quarrel between two of the workers. Hence a complaint came to be lodged by the workers against each other in Bhivandi City Police Station. When the complainant came to know about this fact, he went to the police station. It is his case that both the accused persons were present in the police station. At that time accused No.1 told the complainant that as he had employed child labourers in his factory, he will register a case against him for employing child labourers. Accused No.1 demanded Rs.20,000/- from the complainant for not prosecuting him. Eventually the amount was settled at Rs.5000/-. At that time the complainant had Rs.2000/- with him which he gave to accused No.1 and it was decided that the remaining amount of Rs.3000/- would be paid on 28.2.2003. On 20.2.2003 the complainant went to the police station at about 10:00 a.m.. At that time, accused No.1 was not present. However, accused No.2 met him and he asked whether he had brought remaining amount of Rs.3000/-. When the complainant replied in the negative, accused No.2 told the complainant to bring the amount by evening at any cost. Thereafter the complainant .(4). approached A.C.B. and filed his complaint. Trap came to be arranged. They reached the police station at about 6:30 p.m. Accused No.2 met the complainant and asked whether he had brought the money whereupon the complainant replied in the affirmative and handed over money. On signal being given, the raiding party rushed inside. Thereafter both the accused persons came to be arrested. 3. Charge came to be framed against the appellants for the offences punishable under Sections 7, 12, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Special Judge has convicted and sentenced the appellants as stated in para-1 above. Hence, this appeal. 4. I have heard Mr.Gole the learned Counsel for the appellants-accused Nos.1 & 2 and Mr.Konde-Deshmukh, the learned APP for the State. I have also perused the impugned judgment and .(5). order as well as the record pertaining to the present case. After carefully considering the matter, I am of the opinion that these appeals deserve to be allowed. 5. The evidence of the prosecution is mainly based on the deposition of the complainant PW-1 Hariya. As the prosecution story in para-2 above has been taken from the examination-in-chief of the complainant, I do not think it necessary to reproduce the evidence of complainant again in detail. Suffice to say that the case of the complainant is that on 17.2.2003 when he went to the police station, accused No.1 made a demand for money so that the complainant would not be prosecuted for employing child labourers. In his examination-in-chief the complainant has not stated the time that he went to the police station. However, from his cross-examination it is seen that he received a telephone call at about 3:00 p.m. and within half an hour he went to the police station and at that time he met accused No.1. The specific defence taken by accused No.1 is that on 17.2.2003 he was not at the police station. PW-5 PI Rajeshirke who is the Investigating Officer has admitted that on .(6). 17.2.2003 accused no.1 was on patrolling duty all the time. Thus, if accused No.1 was not present at the police station on 17.2.2003, no demand could have been made by him to the complainant. It is not the case of the complainant that on 17.2.2003 the accused No.2 had any conversation with him. PW-5 in his evidence has also stated that there was no talk between the complainant and accused No.2 on 17.2.2003. 6. It is submitted by the learned Counsel appearing on behalf of the appellants that the prosecution has not proved that accused No.1 had demanded bribe on 17.2.2003. It is further submitted that there is no evidence adduced by the prosecution that accused no.1 demanded and accepted the said amount on 20.2.2003. It is submitted that there is no evidence except that of the complainant PW-1 regarding the alleged demand which was made on 17.2.2003 and it is further submitted that the evidence of PW-1 is not reliable as it is full of contradictions. Mr.Gole placed reliance on the decision of The Supreme Court in the case of Suraj Mal Vs. State (Delhi Suraj Mal Vs. State (Delhi Suraj Mal Vs. State (Delhi Administration) Administration) Administration) reported in 1979 Cri. L.J. 1087 1979 Cri. L.J. 1087 1979 Cri. L.J. 1087, wherein in para 2 of the said judgment it is .(7). observed that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, testimony of such witnesses becomes unreliable and unworthy of credence. 7. Mr.Gole submitted that the evidence of the prosecution witnesses including the evidence of the investigating officer shows that accused No.1 was not present at the police station on 17.2.2003. In such case, there is no question of the complainant meeting accused No.1 on 17.2.2003 in the police station and accused No.1 demanding bribe from the complainant on that day. Mr.Gole placed reliance on the decision of the Supreme Court in the case of Sita Ram v. State of Sita Ram v. State of Sita Ram v. State of Rajasthan Rajasthan Rajasthan reported in 1975 Cri.L.J. 1224 1975 Cri.L.J. 1224 1975 Cri.L.J. 1224, wherein it is observed that if demand of bribe by the accused is not proved then, in that case, story of payment of money by the complainant also is not established beyond reasonable doubt and the presumption raised under the Act cannot be drawn for convicting the accused. 8. Reliance is also placed on a decision of the Supreme Court in the case of G.V.Nanjundiah v. G.V.Nanjundiah v. G.V.Nanjundiah v. State (Delhi Administration) State (Delhi Administration) State (Delhi Administration) reported in 1988 1988 1988 .(8). S.C.C. (Cri.) 77 S.C.C. (Cri.) 77 S.C.C. (Cri.) 77 wherein it is held that once the allegation regarding demand of bribe is proved to be false, the allegation regarding payment of bribe and recovery of the same from the accused should be viewed with suspicion. In the present case, the prosecution has completely failed in establishing the theory of any demand by accused No.1 on 17.2.2003. Thus, subsequent demand of bribe by accused no.2 and recovery of the same from accused No.2 would be viewed with grave suspicion. 9. Thereafter the learned Counsel for the appellants submitted that the sanction order is defective and hence no conviction can be based on such a sanction order. In support of his contention, my attention was drawn to the evidence of PW-3 i.e. sanctioning authority as well as the sanction order Exh.22. The sanctioning authority has stated that my subordinate scrutinized the papers and prepared notes. He considered the notes and other documents for giving sanction. In his cross-examination, the sanctioning authority has admitted that, "the time and place of giving bribe on 20th was not fixed on 17th, as per the complaint. The narration of facts at Sr.No.1 in .(9). sanction order that on 17th it was decided to give the money at 19:00 hours at Bhiwandi police station, on 20th is not correct." . Thus, the sanctioning authority himself has admitted that the averments in his sanction order are not correct. From this, it is clear that the sanctioning authority has not scrutinized all the papers himself and has not applied his mind before according sanction and he has probably relied upon the notes put up before him. 10. It is a paramount consideration that the sanctioning authority must apply its mind thoroughly to the material placed before it and thereafter only accord sanction. It is not necessary to quote the case law on this aspect of the case because, the position is well crystalised and does not require any repetition. In the present case, it does not appear that the sanctioning authority has applied his mind. In this view of the matter, the sanction order cannot be taken into consideration on the ground that there has been total non-application of mind on the part of the sanctioning authority. In this view of the matter, the conviction of both the .(10). appellants cannot be allowed to stand and the same is required to be set-aside. 11. Both the Appeals are accordingly allowed. The conviction and sentence recorded against both the appellants are set-aside. The bail bond of the appellants to stand cancelled. The fine, if paid, be refunded to them. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)