1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 566 OF 2005 Sahebrao s/o Gyanba Sonwane, Aged 45 years, Occupation Service, Resident of Sarnath Colony, Dhar Road, Parbhani, District Parbhani Appellant V E R S U S The State of Maharashtra Respondent Mr. S.P. Chapalgaonkar, Advocate for the appellant Mr. T.S. Lodhe, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 24th November, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned Special Judge, Parbhani, in Special Case No. 5 of 2004, convicting the appellant under the provisions of Sections 7, 13 (1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 and sentencing him to suffer various terms of rigorous imprisonment and to pay a fine with default clauses. The case of the prosecution was as under : 2. In 2003, the appellant was working as Assistant Engineer, M.S.E.B., Jintur, District Parbhani. Complainant Chhatrapati sought electric connection at village Dohara, Taluka Jintur, District Parbhani, and in order to supply the material required for electric connection, the appellant demanded Rs.2,000/- as bribe on 17th March, 2003 and asked the complainant Chhatrapati to hand over the amount of bribe latest by 20th March, 2003. On 20th March, 2003, complainant Chhatrapati lodged his 2 complaint with the Anti Corruption Bureau and they then laid a trap. The trap succeeded. In presence of the shadow panch, the appellant demanded the amount of Rs.2,000/- from the complainant and then directed him to put the amount of Rs.2,000/- in his table-drawer before putting his signature on the relevant papers which released the material for electric connection. Soon thereafter, the Anti Corruption Bureau arrested the appellant and found the tainted currency notes in his drawer. The investigation was completed and the charge-sheet was filed. 3. The prosecution examined seven witnesses. Amongst them, the prosecution witness No. 2, the complainant; the prosecution witness No. 3, the shadow panch; the prosecution witness No. 5, the sanctioning authority; and the prosecution witness No. 7, Inspector Khakale, who had arranged the trap, are important. 4. As indicated above, an unusual feature of this trap is that the complainant could not succeed in persuading the appellant to accept the amount of bribe in his hand. Admittedly, the appellant did not touch the tainted currency notes. As per the prosecution case, he first demanded the amount of Rs.2,000/- to the complainant in presence of the shadow panch, then asked the complainant to put the currency notes in his drawer, and lastly, the currency notes were found in his drawer. However, this case of the prosecution turned topsy turvy, the moment, the complainant entered the witness box. He changed his version to a large extent, so much so that during his examination-in- chief, the learned APP declared him hostile to the prosecution case and was permitted to cross-examine him. 5. The complainant deposed that when he approached the appellant for getting the work done, the appellant avoided to put the date below his signature on certain official paper and said that the complainant had to 'spend amount' for it, thereby the complainant indicated that the appellant demanded bribe from him. The 3 complainant however did not take this further and did not say as to what amount the appellant demanded from him and when the amount would be paid to him etc. He said, thereafter, he approached the Anti Corruption Bureau. He said, when he went to Anti Corruption Bureau, he had taken with him an amount of Rs.2,000/-. He said, the Anti Corruption Bureau then laid the trap and then he admitted that he and the shadow panch went to the office of the appellant on 20th March, 2003 some time prior to 03.00 p.m. He said, he and the shadow panch found that the appellant was not present in his office. He said, he and the shadow panch then waited for the appellant to come. He said, at about 03.30 p.m., the appellant came. He said, he and the shadow panch then entered the office of the appellant. He said, the appellant then made inquiry with him as to whether he had made arrangement of the amount. He said, he replied in affirmative. He then said that thereafter he put the tainted currency notes in the drawer of the table of the appellant. Thereafter, the appellant put the date below his signature on the official paper and handed it over to him. Thus the complainant resiled from his earlier version, and as indicated above, he did not say that the appellant demanded a definite sum of Rs.2,000/- from him and asked her keep the bribe amount in the table drawer. He did not say that as per specific direction of the appellant, he had put the bribe amount in the drawer of the table of the appellant. The material particulars of the demand and acceptance thus are found missing from the deposition of the complainant. In the cross-examination, as expected, he damaged the case of the prosecution further by saying that while he was sitting in front of the appellant in his office, the shadow panch was not present there. 6. The shadow panch, prosecution witness No. 3, it seems, showed lot of courage and scruple while recording his deposition before the Court. He fully supported the prosecution case. As 4 expected, he stated that when he and the complainant entered the office of the appellant, the appellant demanded the sum of Rs.2,000/- from the complainant. The appellant asked the complainant whether he had brought Rs.2,000/- with him. He said, to this, complainant replied in affirmative. He said, thereafter, the appellant opened the left hand drawer of the table and asked the complainant to keep the currency notes in the drawer. He said, then the complainant kept the currency notes in the drawer of the table of the appellant, and then, he said, the appellant closed the drawer. What happened thereafter is not much in dispute. 7. The prosecution witness No. 7 stated that he thereafter entered the office of the appellant along with his staff and the other panch. He said, he learnt from the shadow panch that the appellant had received the tainted currency notes, but had not touched them. He said, the currency notes then were found in the drawer. He said, the currency notes that where found in the drawer, were the same currency notes, which were smeared with anthracene powder. 8. The question is, whether with this evidence, the prosecution would be able to succeed in getting conviction of the appellant? The answer is in the negative. The Supreme Court in the case of Panalal Damodar Rathi v. State of Maharashtra (AIR 1979 Supreme Court 1191) has specifically held that in this kind of case, corroboration on all material particulars of the prosecution case is necessary to prove the case of the prosecution. The Supreme Court held as under : “There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of S. 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.” 5 9. In this case, as said above, the complainant himself turned hostile and refused to toe the line of the prosecution case. He neither stated that the appellant demanded a sum to him as bribe on 17th March, 2003 nor he stated that on 20th March, 2003, the appellant demanded Rs.2,000/- as bribe to him and that he had put the tainted currency notes in the drawer of the table of the appellant at the appellant’s direction. So, though the shadow panch narrated the incident that had occurred on 20th March, 2003 as per the prosecution case, there is practically no corroboration for his version coming from the deposition of the complainant. The prosecution case should therefore fail. 10. Although Shri. Chapalgaonkar, learned Advocate appearing for the appellant tried to further contend that the sanction of the prosecution given by the prosecution witness No.5 is defective, I find no substance in the submission. This prosecution witness No. 5 was at the relevant time working as Joint Secretary (Technical) of M.S.E.B. He categorically stated that he was competent to appoint and remove an Assistant Engineer of M.S.E.B. He further admitted that even the Secretary, his superior officer is also empowered to do so. Shri. Chapalgaonkar contended that since the Secretary (Technical) of the M.S.E.B. was empowered to appoint and remove the person holding the post of Assistant Engineer, the sanction given by the prosecution witness No. 5 was not lawful. Shri. Chapalgaonkar however could not show any provision which says that it is only the Secretary who was competent to appoint and remove a person who is holding the post of Assistant Engineer of M.S.E.B. and not the Joint Secretary. It seems, the witness is trying to suggest that the power of appointment and removal are concurrent with the Secretary and Joint Secretary. In view of this, there appears no defect in the sanction for prosecuting the appellant. In any case, the appeal should succeed. 6 ORDER (a) The appeal is allowed. (b) The Judgment and order dated 15th July, 2005, passed by the learned Special Judge, Parbhani, in Special Case No. 5 of 2004 stands set aside. (c) The appellant is acquitted for the offence punishable under Sections 7, 13 (1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988. (d) His bail bonds shall stand cancelled. (e) The fine amount, if any, deposited by the appellant, be refunded to him. ( A.V. NIRGUDE, J. ) SRM/criapl/566/05/241110/ok