1. The appellant is aggrieved by the judgment and order dated 29-6-2002 in Special Case 4/1997, delivered by the learned Additional Sessions Judge, Wardha, convicting the appellant for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act") and offence under Section 13(1)(d) read with Section 13(2) of the Act. The appellant is sentenced to suffer rigorous imprisonment for eighteen months for each of the offences, the sentences are, however, to run concurrently. The appellant is also sentenced to pay a fine of Rs.400/each for the aforesaid offences.
2. The genesis of the prosecution is complaint/report lodged by the complainant Dnyaneshwar Karnake with the Anti Corruption Bureau, Wardha (A.C.B.) on 18-7-1996. The gist of the said complaint is that the complainant is the owner of 10 acres ancestral land, he has three sisters all of whom are happily married, the father of the complainant expired on 24-5-1992 and since then it is the complainant alone who is tilling the agricultural land. The complainant received a notice from Land Acquisition Officer, Wardha, around 1761996, intimating that an amount of Rs.3,875/was sanctioned as compensation against acquisition of some area of the agricultural land. The compensation notice was addressed to late father of the complainant Namdevrao. The complainant asked his mother Kaushalyabai to collect the compensation, however, since the notice was in the name of late Namdevrao, the office of the Land Acquisition Officer asked the mother of the complainant to obtain fresh 7/12 extract. Enquiries revealed that in order to obtain fresh 7/12 extract all the legal heirs are required to be brought on record. The complainant obtained the death certificate of his father late Namdevrao and in the last week of June 1996, went to the office of the accused Patwari at Manikwada. The complainant informed the accused that an amount of Rs.3,875/was sanctioned as compensation and that since the intimation is in the name of late Namdevrao, the Patwari may effect the mutation. The Patwari (accused) retained the death certificate and told the complainant that an amount of Rs.300/will have to be given and that the said amount be brought on 24-6-1996 and that the mutation shall be done. The complainant states that on 24-6-1996 he went to the office of the accused at Manikwada and requested him to effect the mutation and was questioned by the accused as to whether the complainant has brought an amount of Rs.300/. The complainant said that the amount of Rs.300/is on the higher side and requested the accused to reduce the demand. The accused, however, insisted on being paid Rs.300/for effecting mutation and told the complainant that the work shall not be done unless Rs.300/is paid. The complainant states in the complaint that though reluctant, he paid the accused Patwari Rs.300/. The accused accepted Rs.300/and told the complainant to come on 25-6-1996 to collect the 7/12 extract. The complainant, as told by the accused, went to the office of the accused at Manikwada on 25-6-1996 and met the accused. The accused gave him 7/12 extract. The complainant noticed from the 7/12 extract that other than the names of the complainant and his mother, the names of the three sisters of the complainant were also incorporated in the 7/12 extract. The complainant told the accused Patwari that the sisters are not interested in their shares of the compensation and enquired from the accused the procedure for deleting the names of the sisters. The accused told the complainant to approach the Tahsil office alongwith the three sisters, to prepare relinquishmentdeed and then appear before the Tahsildar who will verify the relinquishmentdeed after questioning the three sisters. The accused further told the complainant that then the relinquishmentdeed be brought to his office and the necessary changes in the 7/12 extract shall be made by deleting the names of the three sisters. The complainant, accompanied by his three sisters went to the Tahsil Office at Ashti on 27-6-1996, drafted the relinquishmentdeed with the assistance of the petition writer and then appeared before the NaibTahsildar who made enquiries with the three sisters and then signed the relinquishmentdeed. The complainant reverted to the accused on 28-6-1996 armed with the relinquishmentdeed and requested the accused to effect the mutation afresh. The accused refused straightway and said that the mutation will not be effected free of costs and demanded from the complainant an additional amount of Rs.300/. The complainant told the accused that he has no money, the accused did not relent, the complainant then conveyed to the accused that money will be arranged in a fortnight and then left for his village. The complainant failed to arrange the amount till 15-7-1996. He then went to Manikwada to tell the accused that he could not arrange the money. The accused was not in Manikwada as he had gone to the Tahsil Office at Ashti. The complainant went to Ashti and met the accused at the Tahsil Office and repeatedly requested him to effect the mutation. The accused, however, insisted that if the mutation is to be done at the earliest, an amount of Rs.300/ should be brought on 19-7-1996. The complainant was unwilling to pay the illegal gratification and lodged the complaint/report dated 19-7-1996 (Exhibit 30) with A.C.B.
3. The case of the prosecution as is unfolded during the trial is that pursuant to the said complaint/report a decision was taken to trap the accused, panchas were summoned, necessary instructions were issued and demonstrations were given and the standard operating protocol was explained.
4. On 19-7-1996, the raiding party left for Manikwada at 930 a.m. or thereabout. The raiding party reached near Manikwada at 130 p.m., the vehicle was stopped, instructions were again issued to the complainant and shadow panch and the complainant and the shadow panch entered the office of the accused at 1.30 p.m. The accused allegedly enquired from the complainant as to whether the money is brought as told by the accused. The complainant allegedly replied in the affirmative. The accused then prepared the document and asked the complainant to take the 7/12 extract and then uttered the words "VERNACULAR MATTER OMITTED". The complainant allegedly gave the amount to the accused which was counted and then kept in the drawer of the table. The complainant came out and gave the predetermined signal, the A.C.B. staff rushed inside the office and apprehended the accused. Investigation ensued, the statutory sanction was obtained and the chargesheet submitted in the Special Court.
5. Charge was framed vide Exhibit 5, the accused pleaded not guilty and claimed to be tried.
6. The prosecution examined seven witnesses including the sanctioning authority. P.W.1 Manohar Kikre is the sanctioning authority, P.W.2 Sanjay Gaikwad carried the seized property to Chemical Analyzer, P.W.3 Dnyaneshwar Karnake is the complainant and P.W.4 Ramesh Bangade and P.W.5 Ramesh Londhekar are the panch 1 and panch 2 respectively. P.W.6 Madhukar Taiwade is the Kotwal attached to the office of the accused and P.W.7 Surwase is the investigating officer. The defence of the accused is of total denial. The trend and tenor of the crossexamination and the written statement submitted by the accused and the answers in the statement recorded under Section 313 of the Criminal Procedure Code would reveal that the accused took a specific defence that in the year 1986 remeasurement of land was done on behalf of the Government and amount 375.50 was outstanding against the complainant as remeasurement charges and notices for payment of the said amount were also issued in the name of late father of the complainant (Exhibit 39 and Exhibit 40). The defence is that on the date of the incident, the accused demanded blank forms of 7/12 extract and 8A from the complainant. The complainant left the office and brought those forms. The accused asked the Kotwal to take out the register of 8C relating to the complainant and the receipt book was already on the table. The accused gave the 7/12 extract to the complainant, took the register 8C and receipt book and enquired from the complainant and was about to prepare the receipt for the measurement charges when the A.C.B. staff rushed in and caught hold of his hands. The defence is also of false implication at the instance of Gopal Kumre.
7. Heard Shri Anand Jaiswal, learned Senior Counsel for the appellant and Smt. M.H. Deshmukh, learned Additional Public Prosecutor for the respondent.
8. Shri Anand Jaiswal, learned Senior Counsel contends that the accused is entitled for acquittal on the short ground that the prosecution has not proved beyond reasonable doubt a decisive demand for illegal gratification. He would urge that even if arguendo it is assumed that the acceptance of the tainted currency notes is proved by the prosecution, in the absence of proof of demand, which is sine qua non for constituting offence under the Act, the prosecution must fail. He would urge that while acceptance of the currency notes is not in dispute, the prosecution has not established that the acceptance of the amount was as an illegal gratification. The learned Senior Counsel, after taking me elaborately to the crossexamination of P.W.3 and P.W.4, the statement recorded under Section 313 of the Criminal Procedure Code and the written statement of the accused, would urge that the accused has probabalized the defence on the touchstone of preponderance of probability. The learned Senior Counsel would contend that the burden on the accused is not to prove the defence beyond reasonable doubt. The accused would be entitled to the benefit of doubt, if on preponderance of probabilities, the accused creates some doubt or suspicion about the veracity or reliability of the prosecution version. Per contra, the learned Additional Public Prosecutor urged that the initial demand is proved by the evidence of P.W.3 and then the demand as on the date of trap is duly proved by P.W.3 and P.W.4. The learned Additional Public Prosecutor would further urge that there is ample corroboration and the acceptance of the currency notes is admitted by the accused. The defence is not substantiated and the learned Additional Public Prosecutor would contend that there is no infirmity with the judgment of the learned Special Judge.
9. It is too well settled that the demand for bribe money is sine qua non to constitute an offence under Sections 7, 13(1)(d) and 13(2) 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 Krishan Chander vs. State of Delhi, (2016) 3 SCC 108. The relevant paragraphs 35, 36 and 37 read thus :
"35. It is wellsettled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) o the PC Act. The same legal principle has been held by this Court in B. Jayaraj, A. Subair and P. Satyanarayan Murthy upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.36. The relevant para 7 from B. Jayaraj case reads thus : (SCC p.58)."7. Insofar as the offence under Section 7 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 7 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 C.M. Sharma v. State of A.P.and C.M. Girish Babu v. CBI."(emphasis supplied)37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p.159, paras 21-23)"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, visavis 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 Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) 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 Sections 7 and 13 of the Act. Qua Section 20 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 7 and not to those under Section 13(1)(d) (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 20 of the Act would also not arise.23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(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, 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 Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied)
10. Equally eloquent and illuminating are the observations of the Hon''ble Apex Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 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 Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair 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 State of Kerala vs. C.P. Rao 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 P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj 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 offence under Section 7 as well as Section 13(1)(d)(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 Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 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 Sections 7 and 13(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 Sections 7 and 13 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 prerequisites 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. Santosh Singh Lamberdar, 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 Satpal, 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 7 or 13 of the Act."
11. Let me now scrutinize the evidence on the anvil of the law laid down by the Hon''ble Supreme Court. The complainant is examined as P.W.3. The initial demand is absolutely uncorroborated. One striking feature of the testimony is the introduction of one Gopal Kumre, who incidentally finds no reference in the report lodged with the A.C.B. on 18-7-1996. The complainant states in the examinationinchief that he informed Gopal Kumre that since he did not have money, his work is not done. This information was conveyed by the complainant to Gopal Kumre, only in response to a specific query by Gopal Kumre, when Gopal Kumre visited the complainant, as to whether the work of the complainant is done. Gopal Kumre told the complainant that the complainant should accompany him and that Gopal Kumre will get the work of the complainant done free. It is Gopal Kumre who took the complainant to A.C.B. Office at Wardha. The notes which were handed over to the A.C.B. were also provided by Gopal Kumre. Pertinently, the defence is of total denial and false implication too. The accused contends that there is a dispute between the accused and Gopal Kumre. Certain documents are placed on record who suggest that Gopal Kumre did have a motive for falsely implicating the accused. A suggestion is given to the complainant, which is admitted, that Gopal is a friend. The complainant, however, disclaims knowledge about a quarrel between the accused and Gopal Kumre and a complaint lodged by Gopal Kumre against the accused, to the Tahsildar. I am inclined to accept the submission of the learned Senior Counsel that the uncorroborated version of the complainant qua the initial demand is not confidence inspiring.
12. P.W.3 complainant states in paragraph 3 that the raiding party included Gopal Kumre and that the complainant and the shadow panch (P.W.4) entered the office of the accused while rest of the raiding party waited outside in the market. The complainant and the shadow panch took seat in the office of the accused. The accused allegedly enquired whether money is brought and the complainant said that he has brought money. The complainant further states in the examinationinchief that he sought to give the money to the accused and the accused stated that the money be kept in the drawer. The complainant again asked the accused to count the money, the accused counted the same and then kept in the drawer. In the crossexamination, the complainant denies the suggestion that he was informed that the remeasurement charges are payable. He further denies that on such demand being made, there was a dispute between the complainant and the accused. The complainant admits that 3 to 4 persons were already sitting in the office of the accused when he and the shadow panch entered the office. He admits that the Kotwal (P.W.6) was also present. The complainant denies the suggestion that 34 persons were sitting till the end. He, however, admits that Kotwal was present in the office till the end. He denies the suggestion that on meeting the accused, he shook hands with the accused. The complainant admits that as soon as he reached the table of the accused, the accused instructed the Kotwal to take out the register and that the accused enquired as to whether the complainant brought blank Forms of 7/12 extract. The complainant admits that he replied in negative and that the accused asked him to bring blank Forms of 7/12 extract. He further admits that he went out, brought the blank Forms of 7/12 extract and that he had also demanded extract of Form 8A. The complainant admits that Form 8A was also brought by the complainant when he went out. He admits that thereafter the accused filled up those Forms on the basis of entries in the register. He says he is not aware that for obtaining certified copy of 7/12 extract and Form 8A fees are to be paid. He admits that the 7/12 Extract was handed over before the payment of the amount. In paragraph 14 of the crossexamination, P.W.3 denies the suggestion that on 30-1-1996 Madhukar Taiwade served a notice to the complainant for recovery of Rs.377.50 and Rs.86 as fees of remeasurement and arrears of land revenue respectively. Initially P.W.3 denies his signature at Exhibit 39 and Exhibit 40 and then admits that the signatures appeared to be his. The shadow panch Ramesh Bangde is examined as P.W.4. P.W.4 supports the version of the prosecution to a limited extent. The question put up by the Public Prosecutor and the answer given by P.W.4 is reproduced below :
"Que. : At that time what enquiry was made to complainant
Kannake by accused ?
Ans. : Accused enquired from Mr. Kannake whether he was
brought money when he wants 7/12 extract and
complainant stated yes."
13. Since the shadow panch did not support the prosecution
entirely, he was declared hostile and crossexamined
by the
prosecution. In the crossexamination,
P.W.4 says ''it is correct to say
that after it accused enquired from complainant by uttering the word
sangitalele paise aanle kai (whether he has brought money as per
instruction). Mi sangitlya pramane je tu aanle te tu de.''
14. P.W.4 is thereafter crossexamined by the defence during the course of which inter alia deposes thus :
"I know that for taking extract of 7/12 and copy of map we have
to pay fee to Patwari. It is correct to say that on that date complainant
had also got prepared and taken from accused the extract of 7/12 and
copies of map.
It is correct to say that while giving my statement to me that
police had told me to read it and it will make convenient to me to give
deposition in court."
15. P.W.6 is Madhukar Taiwade, the Kotwal attached to the
office of the accused who deposes thus in the examinationinchief:
"In starting at about 3.00 p.m. some agriculturist had come in office of
accused for obtaining extract of 7/12 and accused gave them extract of
7/12 by filling the necessary entries in form. After it one Dnyaneshwar
had come in office of accused. He also demanded his 7/12 extract. At
that time accused enquired to Dnyaneshwar that there is a recovery of
land revenue in the name of his father and whether he had brought
that account of land revenue. At that time Dnyaneshwar stated that he
has brought that recovery of land revenue. At that time Patwari asked
me to bring receipt book. While I had gone for bringing the receipt
book the Dnyaneshwar took out money and put it into the drawer of
accused.
Q. What happened there prior to it ?
A. There was a talk between Dnyaneshwar and Patwari about
preparation of 7/12 extract. And Patwari also stated that
since prior to 2-3
days his papers are ready and as he had
not come and now as he has come he should take his
papers.
Q. Excluding it what other talk took place ?
A. Excluding in no other talk took place."
This witness was declared hostile. However, nothing is
brought out in the crossexamination
by the Public Prosecutor to assist
the prosecution.
16. The evidence on the aspect of the demand as on the date
of the trap is not sufficient to prove a decisive demand for illegal
gratification, beyond reasonable doubt. The testimony of both the
complainant and the shadow panch must be tested on the anvil of
caution. As is propounded by the Hon''ble Supreme Court, both the
complainant and the panchas are partisan witnesses in the sense that
they are interested in the success of the trap. The testimony of the
complainant cannot be on a better footing than that an accomplice, as
is held by the Hon''ble Supreme Court in Pannalal Damodar Rathi vs.
State of Maharashtra, 1980 SCC (Criminal) 121, that after the
introduction of Section 165A
of the Indian Penal Code, 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 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.
The Kotwal, who is examined on behalf of the prosecution and who
admittedly is privy to the conversion has not supported the prosecution
version. Au contraire, the said witness clearly supports the defence
version. Nothing is brought out in the crossexamination
of P.W.6,
after he was declared hostile, to take the case of the prosecution any
further.
17. The role of Gopal Kumre is suspicious. He allegedly approached the complainant, instigated the complainant to lodge complaint with A.C.B., provided the currency notes to the complainant and accompanied the raiding party. The previous enmity of Gopal Kumre with the accused is brought out with reasonable certainty and the possibility of false implication of the accused at the behest of Gopal Kumre, who incidentally is not examined, cannot be ruled out.
18. The accused is presumed to be innocent till the prosecution establishes beyond reasonable doubt that the accused demanded and accepted illegal gratification. The presumption of innocence is neither diluted nor dislodged by the proof of acceptance or recovery of the currency notes, unless the demand is established.
19. I am not persuaded to hold that the prosecution has proved the offence beyond reasonable doubt. I would set aside the judgment and order of the learned Additional Sessions Judge, Wardha in Special Case No.4/1997 on 29-6-2002. The accused is acquitted of the offences punishable under Section 7, Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The bail bond of the accused stands discharged. Fine, if any, paid by the appellant be refunded to him.
Appeal is disposed of accordingly.
