1 APEAL 659/2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.659 OF 2003 IN SPECIAL CASE NO.1 OF 1997 Shrikant Tukaram Borade Aged 32 years, Occupation service as Peon with District Industrial Center, Kolhapur .... Appellant v/s The State of Maharashtra .... Respondent. Mr. A. Majeed Menon with Mr. K.K. Joseph and Mr. P. Memon for the appellant. Mrs. V.R. Bhosale, APP for the State. CORAM: V.M. KANADE, J. DATE : 9th December, 2010 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned APP appearing on behalf of the State. 2. The appellant is challenging the judgment and order 2 APEAL 659/2003 passed by the Special Judge dated 03/05/2003. By the said Judgment and Order, the Special Judge was pleased to convict the appellant – original accused for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. He was sentenced to suffer rigorous imprisonment for 15 months and to pay fine of Rs 300/- and in default of payment of fine to undergo further simple imprisonment for one month for the offence punishable under section 7 of the Prevention of Corruption Act, 1988. He was also sentenced to suffer rigorous imprisonment for eight months and to pay fine of Rs 300/- and in default of payment of fine to undergo further simple imprisonment for one month for the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. 3. Prosecution case in brief is that the appellant was working as a peon in the District Industrial Center, Kolhapur and he had demanded Rs 400/- from the complainant as an illegal gratification on 17/08/1994 and had accepted the said amount on 24/08/1994. According to the prosecution, the said demand was made for sanctioning his case under the Prime Minister Employment Scheme. According to the prosecution, the complainant Rajendra Bhosale was carrying on milk business. He, however, decided to purchase auto- rickshaw and take the benefit of the Prime Minister Employment Scheme. In order to avail the benefit of the said 3 APEAL 659/2003 scheme, application had to be made through Ratnakar Bank having its Branch at Rukadi and the said application had to be made through D.I.C. Kolhapur. According to the complainant, he went to the Office of D.I.C. on 08/07/1994 and he met the appellant who gave him the relevant form and also advised him to attach necessary documents alongwith the application. Thereafter, the complainant filled up the form and thereafter went to the Office of the Branch Manager of Ratnakar Bank on 20/07/1994 and he annexed affidavit and other documents including his photograph. Thereafter again he went to the Office of D.I.C. on 17/08/1994. The complainant showed all documents to the accused Shri Borade who is appellant herein. He told the complainant that if he met the concerned Officer, he would demand Rs 800/- to Rs 900/- to get the proposal sanctioned. However, he would get the work done only for Rs 500/-. The complainant, however, agreed to give Rs 400/-. Prosecution case is that, therefore, the first demand was made on 17/08/1994. The accused asked the complainant to make the arrangement and come on 24/08/1994 with Rs 400/-. The complainant, thereafter, on 20/08/1994 approached the Anti Corruption Bureau, Kolhapur who noted his complaint and prepared a pre-trap panchanama and, thereafter, on 24/08/1994, the Investigating Officer alongwith the complainant and the raiding party went to the D.I.C. Office and it was agreed that the complainant would pay the said amount of marked currency notes of Rs 400/- applied with 4 APEAL 659/2003 anthracene powder in the office of the accused. Accordingly, the complainant along with the panch Mr. Kalyankar went to his Office and met him and, according to the complainant, demand was made. He paid the said amount to the accused and gave signal to the raiding party who came and arrested the accused and recovered the said marked money from his pocket. The accused was arrested and statements of witnesses were recorded. The Trial Court on the basis of evidence which was adduced by the prosecution convicted the appellant. 4. The learned Counsel appearing on behalf of the appellant has taken me through the judgment and order of the Trial Court as also the evidence of prosecution witnesses examined by the prosecution. He submitted that firstly the demand had not been established by the prosecution. Secondly, he submitted that the venue where the said payment was to be made was changed and that created doubt about complainant’s version of demand of bribe. Thirdly, it is submitted that the evidence of the complainant was not credit-worthy since the complainant had admitted in his cross-examination that he had affirmed a false affidavit, stating therein that the income of all the members of his family was less than Rs 2400/- per month. It is submitted that the complainant in the cross-examination had admitted that he knew from the beginning that the appellant was a peon and, therefore, was not authorized to grant the 5 APEAL 659/2003 application of the complainant. He submitted that the defence of the appellant is that he had demanded the said amount only as a reward for assisting the complainant and not for the purpose of getting his proposal sanctioned. 5. Mrs. Bhosale, the learned APP appearing on behalf of the State has pointed out that the Trial Court had given cogent reasons while convicting the appellant and no case was made out for interfering with the judgment and order passed by the Trial Court. She, however, fairly invited my attention to the judgment of the Apex Court in State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede1 wherein the Apex Court had held that change of venue from the office of the accused to a public place was a circumstance which did not support the complainant’s case. She submitted that,normally, a public servant would prefer to accept the bribe amount within the confines of his office and would not take risk of accepting money in public place as observed by the Apex Court in the said judgment. 6. In my view, it has come on record that the complainant knew that the appellant was a peon working in D.I.C Office and he did not have the authority to sanction the application of the complainant. That being the position, there is no independent material on record to indicate that the appellant had demanded bribe for getting proposal of the complainant 1 (2009) 15 SCC 200 6 APEAL 659/2003 sanctioned. It is a well settled position in law that demand for illegal gratification is sine qua non for initiating proceedings against the accused and unless the demand for illegal gratification is established, the prosecution cannot establish its case. Though the prosecution case was that the complainant had demanded money for the purpose of obtaining sanction on his application, this has not been corroborated by the independent witness Mr. Kalyankar who was examined as P.W.2. So, on the point of illegal gratification, there is no corroboration from the independent witness. Apart from that, the other witness P.W.4 has candidly stated in his evidence that he did not hear the conversation between the complainant and the accused nor has he seen the appellant being paid the said amount by the complainant. In the absence of independent corroborative evidence, it is difficult to rely on the statement of the complainant on the question of demand for getting the application sanctioned, particularly in view of the admission given by the complainant in his evidence that he had prepared a false affidavit on oath and had falsely stated in that affidavit that total income of all the members of his family was Rs 2400/-. It is an admitted position that as per Prime Minister Scheme, only those persons whose income from all the members of family was Rs 2400/- alone was entitled to get the benefit of the said scheme. As rightly pointed out by the learned Counsel for the appellant that the evidence of the complainant therefore would not be relied 7 APEAL 659/2003 upon. The complainant, in his cross examination having admitted that he had affirmed a false affidavit, was not a credit-worthy witness and this gives credence to the story of the defence that the appellant merely was trying to help the complainant and since he was harassed by the Officers of the Bank and in the Office of D.I.C, in order to teach lesson to a person from that office, he made a false accusation against the appellant. The Apex Court in State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede1 has observed that if the accused intended to accept money, he could have done it in his house and there was no reason to ask the complainant to meet him at a public place. The Apex Court in paras 17 and 19 of its judgment in the said case has observed as under:- “17. Indisputably, the complainant took with him two panch witnesses. One of them Ashok Waghade was a witness in respect of the alleged demand of illegal gratification on the part of the respondent. He having died during pendency of the matter before the learned Special Judge, no other independent witness was available to prove the prosecution case in that behalf. The second panch witness was not a 1 (2009) 15 SCC 200 8 APEAL 659/2003 witness of demand. Despite the said fact, the prosecution sought to prove the demand purported to have been made by the respondent through him. It is of some significance to notice that although by the said process PW 1 did not support the accused, he was declared hostile and permission to cross-examine him was sought for by the prosecution.” “19. Even the complaint was made only on 8-8-1995. Indisputably, at least two attempts have been made, one on that date and another later on. The entire procedure for making a raid was repeated on 22-8/1995. This itself casts a serious doubt about the prosecution case. The matter does not end here. The complainant with Ashok Waghade went to the police station. Then, they went to their residence. If the respondent intended to take the amount, he would have accepted the same in his house itself and there was no reason to ask the complainant and the witness to meet him at a public place i.e near the Veterinary Hospital. Even the details of 9 APEAL 659/2003 the said purported raid viz time of the complainant’s visit to the police station, the residence of the respondent and the Veterinary Hospital, have not been disclosed. It is, therefore, highly doubtful that the version of the complainant was true.” In the present case also, the complainant in his evidence has stated that he invited the accused to take tea at a public place and ordered three cups of tea, when it was decided that he would offer bribe to the accused in his office. There was thus no reason for the complainant to change the place of making payment and it was not his case that the accused had chosen to accept the bribe in public place. This makes a story of the complainant highly doubtful. The Apex Court further in para 16 in Dnyaneshwar Laxman Rao Wankhede1 (supra) has observed as under:- “16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount 1 (2009) 15 SCC 200 10 APEAL 659/2003 of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. The Apex Court, therefore, has observed that even while invoking the provisions of section 20 of the Act, Court is 11 APEAL 659/2003 required to consider the explanation offered by the accused on the touch stone of preponderance of probability and not on the touch stone of proof beyond the reasonable doubt. In the preset case, the accused admittedly was working as a Peon. He had no authority to sanction which authority was with the Manager of the Bank. The complainant knew that he did not have such authority and that he was only a peon. The complainant was not eligible for getting the loan sanctioned. Ordinarily he would not make payment to a person who was not authorized to sanction the application. The defence, therefore, of the appellant/accused appears to be probable that the money was demanded only for the purpose of assisting the complainant in completing the documents and other formalities which was necessary for making the application under the said scheme. The Trial Court, therefore, clearly erred in convicting the appellant in commission of the aforesaid offences. 7. Accordingly, the following order is passed:- O R D E R In the result, judgment and order of the Trial Court is quashed and set aside. Appellant is acquitted of the offence with which he was charged. Appellant is on bail. His bail bond shall stand cancelled. Fine, if paid by the appellant, 12 APEAL 659/2003 may be refunded. Appeal is accordingly allowed and disposed off. V.M. KANADE, J.