Shrikant D. Kulkarni, J
1. Feeling aggrieved by the impugned judgment and order of conviction passed in Special Case No. 4 of 2000 by the Special Judge (P.C. Act),
Aurangabad, the appellant/original accused has preferred this appeal.
2. The facts giving rise to this appeal in brief are as under:
3. The appellant was serving as Sub Divisional Engineer in the Department of Telecommunications at Aurangabad at the relevant point of time. The
complainant (PW-1) Devidas Mohite had applied for installation of STD/PCO booth at Aurangabad. One Mr. Anil Agrawal was STD machines
dealer and he contacted to the complainant that he should purchase machine from him. Accordingly, the complainant received demand note of
Rs.5,000/-, and the complainant deposited the same in the telephone office. The site inspection was conducted when the appellant refused to give
connection in the said premises on account of change of site. Mr. Anil Agrawal informed to the complainant that if he wanted to install the STD booth
in the same premises, he had to pay Rs.2,000/-. Accordingly, the complainant agreed to pay the said amount. But he was not ready to pay bribe. The
complainant went to ACB office at Aurangabad and lodged complaint against the appellant and pre-trap panchanama was prepared. On the very next
day, trap was laid in the office of the appellant at 4.40 p.m.. According to the prosecution, the appellant had accepted bribe amount of Rs.2,000/- from
the complainant. The appellant was found with currency notes of Rs.2,000/- with anthracene power.
The post-trap panchanama was drawn. Accordingly, crime No.II-3022 of 1998 came to be registered for the offences punishable under Sections 7,
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act†for the sake of convenience) at Jawahar
Nagar Police Station , Aurangabad. After completing the procedural part and after obtaining the sanction, charge-sheet came to be filed in the special
court.
4. The learned Special Judge, after appreciating the evidence and argument advanced on behalf of both the sides was pleased to convict the appellant
for the offence punishable under Section 7 of the Act and sentenced to suffer rigorous imprisonment for one year and to pay of Rs.500/-with default
stipulation. The appellant was also convicted for the offences punishable under Section 13(1)(d) and 13(2) of the Act and sentenced to suffer rigorous
imprisonment for two years and to pay fine of Rs. 1,000/- with default stipulation.
5. The impugned judgment and order of conviction is challenged before this Court on various grounds.
6. Heard Mr. R.N. Dhorde, learned senior counsel for the appellant and Mr.S.P. Deshmukh, learned APP for the respondent/State.
Submission of learned Senior Counsel for the appellant
7. Mr. Dhorde, learned senior counsel invited my attention to the evidence of the complainant/PW-1 Devidas Mohite and PW-2 (Panch Witness)
Prakash Nikam. He pointed out that both the important witnesses have turned hostile and not supported to the prosecution case. Another witness PW-
5 Abhay Agrawal, who alleged to have played role as a mediator for settling the amount of bribe and to get the work done from the appellant as per
the prosecution case, he has also not supported to the prosecution case. Mr. Dhorde, learned senior counsel, therefore, submitted that three important
witnesses have not supported to the prosecution case. He submitted that the complainant had shown one site in his application for STD booth and at
the time of site inspection, another premises was shown, and therefore, the appellant had made it clear that now complainant cannot change the site.
The complainant any how wanted the STD telephone booth in the same premises, and accordingly, made plant to falsely implicate the appellant in this
case.
8. Mr. Dhorde, learned senior counsel submitted that there is no direct demand of Rs.2,000/- by the appellant to the complainant Mr. Mohite. So called
recovery of bribe amount is from the socks of the appellant, which is unreliable having regard to the evidence of PW-1 Mr. Mohite and PW-2 Mr.
Nikam (Panch Witness).
9. Mr. Dhorde, learned senior counsel submitted that alleged bribe amount was put on the table of the appellant by the complainant at the time of trap
according to the prosecution case. As such, the recovery from the socks of the appellant is nothing but a concocted story put forth by the prosecution,
which is liable to be discarded in view of the evidence of PW-2 Mr. Nikam (Panch Witness)
10. Mr. Dhorde, learned senior counsel vehemently submitted that the demand and acceptance of bribe by the appellant/accused is a sine qua non.
Mere recovery of currency notes from the appellant/accused without proof of demand do not constitute the offences under Sections 7, 13(1)(d) and
13(2) of the Act.
11. Mr. Dhorde, learned senior counsel has placed his reliance on the following citations in support of his submissions.
(i) M.R. Purushotham Vs. State of Karnataka reported in (2015) 3 SCC 247.
(ii) B. Jyraj Vs. State of Andrapradesh reported
(iii) A. Subair Vs. State of Kerala reported in 2010 AIR SCR 1115.
(iv) V.Venkata Subbarao Vs. State represented by Inspector of Police A.P. reported in AIR 2007 Supreme Court 489.
(v) Subash Parbat Sonvane Vs. State of Gujarat reported in AIR 2003 Supreme Court 2169.
12. Mr. Dhorde, learned senior counsel further submitted that presumption under Section 20 of the Act can be raised only when demand by accused is
proved according to the Act. In the present case, demand and acceptance of bribe is not proved, and as such, presumption available under Section 20
of the Act cannot be drawn in favour of the prosecution. Mr. Dhorde has placed his reliance on the following citations in support of his submission.
(i) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede reported in 2009 AIR SCW 5411.
(ii) V.Venkata Subbarao Vs. State represented by Inspector of Police A.P. reported in 2007 CRI. L.J. 754.
(iii) Subhash Parbat Sonvane Vs. State of Gujrath reported in AIR 2003 Supreme Court 2169.
(iv) Darshan Lal Vs.The Delhi Administration reported in 1974 Cri. L.J. 307
13. Mr. Dhorde, learned senior counsel also took me through the sanction order, which is below exhibit 27 with the evidence of sanctioning authority
PW-3 Mr. Pradhan Saran at exhibit 26. Mr. Dhorde submitted the sanctioning authority has also not considered the fact that the complainant himself
is not sure about who demanded the bribe either Mr. Agrawal or Mr. Kawde. As such, the sanction order is bad in law. Mr. Dhorde, learned senior
counsel has placed his reliance on following decision of the Apex Court in support of his submission.
(i) State of Karnataka Vs. Ameerjan reported in (2007) 11 SCC 273.
14. Mr. Dhorde, learned senior counsel while concluding the argument submitted that the impugned judgment and order of conviction rendered by the
learned Special Judge is liable to be quashed and set aside. The appellant/original accused may be acquitted out of the charges under Act, and he may
be set at liberty.
Submissions of learned APP for the State
15. Mr. S.P. Deshmukh, learned APP for the respondent/State strenuously submitted that though PW-1/original complainant Mr. Mohite and PW-2
Mr. Prakash Nikam (panch witness) turned hostile and not supported to the prosecution case, their evidence cannot be thrown away in entirety. Their
evidence need to be examined as a whole and whatever part of evidence is found reliable can be accepted. The learned trial Judge has accordingly
accepted reliable part of evidence of PW-1/original complainant Mr. Mohite and PW-2 Mr. Prakash Nikam (panch witness). The learned trial Judge
has also recorded reasons to that effect for accepting their testimony. He submitted that at the relevant point of time, the appellant/accused was
working as a Sub Divisional Engineer in the telephone office at Aurangabad. He was looking after the work of sanctioning STD booth. He had
inspected site and disapproved the site and in that context compelling to the complainant to pay Rs.2,000/- by way of bribe to sanction STD telephone
booth in the same premises. This particular aspect may be considered.
16. Mr. Deshmukh, learned APP invited my attention to the impugned judgment, more particularly, paragraph Nos.23 and 24. He also invited my
attention that the amount of bribe was recovered from appellant’s right leg sock smeared with anthracene powder. No satisfactory explanation is
offered by the appellant.
17. Mr. Deshmukh submitted that tainted currency notes were found in conscious possession of the appellant. The tainted currency notes were
concealed by the appellant which demonstrate that he had accepted the bribe. Mr. Deshmukh submitted that once acceptance of tainted currency
notes is established the presumption of Section 20 of the Act must be drawn. Mr. Deshmukh has placed his reliance on citation in case of T. Shankar
Prasad Vs. State of Andrhar Pradesh reported in (2004) 3 SCC 753, which is referred in the impugned judgment.
18. Mr. Deshmukh, learned APP further submitted that it is a presumption under law and casts an obligation on the Court to operate it in every case
brought under Section 7. The presumption though rebuttable, the appellant has failed to rebut the presumption. As such, the learned Additional
Sessions Judge/Special Judge (POCSO Act) has rightly held the appellant guilty under Sections 7, 13(1)(d) and 13(2) of the Act. He submitted that the
learned Special Judge has recorded sound reasons while awarding the sentence, which are in tune with the provisions of the Act. No interference is
required.
19. I have considered the submissions of both the sides. I have also gone through the citations relied upon by Mr. Dhorde, learned senior counsel and
Mr.Deshmukh,learned APP for the respondent/State.
20. I have also gone through the evidence of PW-1 Mr. Devidas Mohite (complainant), PW-2 Mr. Prakash Nikam (panch witness). PW-3 Mr.
Pradhan Saran (sanctioning authroity), PW-4 Mr. Kakade PW-5 Mr. Abhay Agrawal mediator for bribe. PW-6 Subhash Joshi, PW-7 Mr. Tandale
(investigating officer).
21. In addition to above referred stock of oral evidence, the prosecution has also pressed into service the following stock of the documentary
evidence.
(i) Pre trap Panchanama (exhibit 20),
(ii) Post trap Panchanama (exhibit 21),
(iii) Arrest Panchanama of the appellant (exhibit 22),
(iv) Sealed container of anthracene powder (exhibit 23),
(v) The copy of the scene of offence (exhibit 24),
(vi) Sanction order (exhibit 27),
(vii) Statement of the complainant PW-1 Mr. Mohite (exhibit 17) dated 11.06.1998.
Admitted factual scenario
22. At the relevant point of time, the appellant was working as a Sub Divisional Enginner at Aurangabad telephone office. PW-1 Mr. Devidas Mohite
(complainant) had filed an application for getting STD telephone booth connection. PW-1 Mr. Devidas Mohite has deposited Rs.5,000/- with the
Treasury as per demand note on 10.06.1998. The appellant and his junior engineer Mr. Wagh conducted spot inspection where STD/PCO was to be
installed. It was found that place mentioned in the application was not same where the connection was demanded. The connection was demanded at
some other place and the complainant Mr. Devidas Mohite was insisting to have PCO connection in the said premises. This is the alleged staring point
which prompted PW-1 Mr. Mohite to start dealing with Mr. Agrawal (telephone contractor) and accordingly bribe amount was settled at Rs.2,000/-.
Soon after the trap, the F.I.R. vide Crime No.3022 of 1998 came to be registered against the appellant at Jawahar Nagar Police Station, Aurangabad
and further investigation part was completed including obtaining sanction.
23. The entire prosecution building is depend on the testimony of PW-1 Mr. Devidas Mohite (complainant), PW-2 Mr. Prakash Nikam (panch
witness) and PW-5 Mr. Abhay Agrawal (supplier/contractor of STD Booth machines). On going through the evidence of PW-1 Mr. Devidas Mohite
(complainant) and PW-2 Mr. Prakash Nikam (panch witness), it is evident that both of them have not supported to the prosecution case. They have
not stated about demand and acceptance of bribe of Rs.2,000/- by the appellant when trap was laid on 11.06.1998. It is well settled position of law that
the evidence of witness must be read as a whole. The part of testimony of a hostile witness can be accepted, which is found to be reliable and
trustworthy. The question is whether the evidence of above two witnesses on the material point of demand and acceptance of bribe is found reliable
and inspired confidence of the Court to award the conviction.
24. On going through the evidence of PW-1 Mr. Mohite (complainant) and PW-2 Mr. Prakash Nikam (panch witness) very carefully, it is evident that
their evidence does not focus any light positively about the demand and acceptance of bribe by this appellant/accused, when the trap was laid in his
office.
25. The relevant part of the evidence of PW-1 Mr. Devidas Mohite (complainant) on the point of demand and acceptance is reproduced hereunder.
26. So also, the relevant part of the evidence of PW-2 Mr. Prakash Nikam (panch witness) on the point of demand and acceptance is reproduced
hereunder.
27. According to the prosecution, the bribe money was recovered from the possession of the appellant/accused. In this context, after having
microscopic examination of the above referred two important witnesses, the prosecution does not get any support from the evidence of PW-1 Mr.
Devidas Mohite (complainant) and PW-2 Mr. Prakash Nikam (panch witness) on the crucial point of demand and acceptance of bribe by the
appellant/accused. It appears from the evidence of PW-1 Mr. Devidas Mohite (complainant) that he had put the bribe amount on the table of the
appellant/accused, when he was sitting in his chamber. There was no demand of bribe of Rs 2,000/- from the side of the appellant. More so, PW-1
Mr. Devidas Mohite (complainant) did not state that the appellant has accepted the bribe amount and accordingly put it in his drawer or cupboard. As
such, so called bribe amount of Rs.2,000/- seems to have been put on the table of the appellant/accused without any demand from the side of the
appellant/accused. There was no such conversion about demand and acceptance of the bribe from the appellant/accused. Much was argued by Mr.
Deshmukh, learned APP for the respondent/State about the recovery of the tainted currency notes from the right leg sock of the appellant, and
thereby laying hand on the presumption under Section 20 of the Act, but I do not find any merit in his submissions in view of weak quality of above
referred two witnesses.
28. A useful reference can be made in case of M.R. Purushotham Vs. State of Karnataka (supra), wherein it is held by the Hon’ble Supreme
Court that when demand of bribe is not proved by the prosecution, mere possession and recovery of currency notes from the accused without proof of
demand do not constitute offence under Section 13(1)(d) read with Section 13(2) of the Act.
29. In B. Jayraj Vs. State of Andhra Pradesh (supra), wherein it is held by the Hon’ble Supreme Court that the demand of illegal gratification by
the appellant/accused must be proved beyond the reasonable doubt. It is held by the Hon’ble Supreme Court that the demand must be proved
beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. In absence of proof of demand for illegal gratification or use
of corrupt or illegal means or abuse of position for obtaining any valuable thing or for gaining pecuniary advantage, the above said offences do not
stand established. Mere possession and recovery of currency notes not sufficient to constitute offence. Presumtion against public servant under
Section 20 of the Act can be drawn only after demand for acceptance of illegal gratification is proved. Such presumption is applicable only in respect
of offence under Section 7 of the Act, but not under Section 13 (1)(i) and (ii) of the Act.
30. In A. Subair Vs. State of Kerala (supra), V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P. (supra), Subhash Parbat
Sonvane Vs. State of Gujrat (supra) and State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (supra), the Hon’ble Supreme Court
has reiterated the same view.
31. Having regard to the above legal position made clear by the Hon’ble Supreme Court, and in view of the quality of evidence of PW-1 Mr.
Dividas Mohite (complainant) and PW-2 Mr. Prakash Nikam (panch witness), it is clear just like day light that the prosecution has miserably failed to
prove the basic legal requirement of demand and acceptance of bribe as contemplated under Section 13 (1)(d) read with Section 13(2) of the Act. The
prosecution story is collapsed since both the material witness (supra) have not extended any support to prove the basic legal requirement of demand
and acceptance of bribe by the appellant/accused for installation of STD booth in the premises of the complainant PW-1 Mr. Devidas Mohite
(complainant).
32. There is also suspicion about the so called recovery of tainted currency notes/illegal gratification. According to PW-1 Mr. Devidas Mohite
(complainant), he had put the bribe amount on the table. Tainted currency notes were recovered from the right leg sock of the appellant. It is further
evident from the above referred witnesses as well as investigating officer that initially search was made in the cupboard of the appellant, but tainted
currency notes were not found. Another attempt was made to search tainted currency notes in the table drawer of the appellant, but that attempt also
went fruitless. Lastly, recovery alleged to have made from the appellant’s right leg sock. How far this is reliable evidence? Certainly not! When
PW-1 Mr. Devidas Mohite (complainant) has nowhere stated that the appellant/accused had put the tainted currency notes in his right leg socks. So
this recovery is also found to be a doubtful exercise in view of the above factual scenario.
33. Apart from that quality of evidence, even for the sake of argument it is accepted that tainted currency notes of Rs.2,000/- were allegedly
recovered from the appellant’s right leg sock, this alleged recovery of tainted currency notes from the appellant/accused can be accepted, in
absence of demand of bribe, the definite answer is no in view of decision in case of M.R. Purushotham Vs. State of Karnataka (supra), wherein it is
made clear by the Hon’ble Supreme Court that mere possession and recovery of currency notes from accused without proof of demand do not
constitute offence under Section 13(1)(d) read with Section 13(2) of the Act.
34. Now coming to the evidence of PW-5 Mr. Abhay Agrawal, who alleged to have played role of a mediator in completing the deal of bribe. On
going through the testimony of this important witness PW-5 Mr. Abhay Agarawa, it is clear that he has also not supported to the prosecution case. He
has turned hostile. He has candidly stated that the appellant/ accused never told him to inform PW-1 Mr. Devidas Mohite (complainant) to pay him
Rs.2,000/- for getting STD booth connection by way of illegal gratification. It is, therefore, clear that this important witness PW-5 Mr. Abhay Agrawal
has also given severe blow to the prosecution case.
35. Having regard to the appreciation of evidence of above referred three witnesses PW-1 Mr. Devidas Mohite, PW-2 Mr. Prakash Nikam (panch
witness) and PW-5 Mr. Abhay Agrawal (mediator) to fix the bribe amount, the entire prosecution edifice is collapsed. The basic legal requirement of
demand and acceptance of bribe as contemplated under Sections 7, 13(1)(d) read with Section 13(2) of the Act is not proved by the prosecution. The
learned Special Judge/Additional Sessions Judge though observed that above said three witnesses have turned hostile and not supported to the
prosecution case, went ahead under wrong presumption and convicted the appellant/accused for the above said offences. The findings recorded by
the learned trial Judge are found perverse having regard to the evidence on record. The learned Special Judge/Additional Sessions Judge has driven
himself on morality and ethics and convicted the appellant/accused for the above said offences, when the prosecution has failed to prove the basic
legal requirement of demand and acceptance of bribe within four corners of law.
36. The last point is about sanction order. Whether it is valid and legal and according to the mandate of provisions of the Prevention of Corruption Act,
1988. Mr. Dhorde, learned senior counsel invited my attention to the evidence of PW-3 Pradhan Saran vide exhibit 26. He pointed out that Pradhan
Saran is examined by the prosecution as a competent authority/sanctioning authority. While facing the cross-examination, he has admitted that he did
not make any enquiry with the subordinates regarding the allegations made against the appellant. He simply relied upon the investigation papers. He
submitted that the sanction order vide exhibit 27 is mechanical one and bad in law. I found merit in the submissions of Mr. Dhorde, learned senior
counsel. On perusing the cross-examination of PW-3 Pradhan Saran (sanctioning authority), it would be clear that the sanctioning authority has not
applied his mind before according the sanction in the case. He has not applied his mind independently having regard to the facts of the case. He has
simply relied upon the investigation papers and accorded sanction, which may be termed as mechanical sanction order. Certainly, the sanction order
vide exhibit 27 issued by PW-3 Mr. Pradhan Saran is bad in law. Reliance can be placed in case of State of Karnataka Vs. Ameerjan (supra),
wherein the Hon’ble Supreme Court has held that an order of sanction should not be construed in a pedantic manner. It is also well settled that the
purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person
to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or
not. For the aforesaid purpose, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be
demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
37. If the evidence of PW-3 Pradhan Saran (sanctioning authority) is considered in the background of legal position made clear by the Hon’ble
Supreme Court (referred above), it is clear that the sanctioning authority has not applied his independent mind before according the sanction for
prosecution. He has not even considered whether the material collected by the Investigating Officer would prima facie establish the offence by the
public servant concerned. Certainly, the sanction order vide exhibit 27 is bad in law.
38. There is no need to discuss rest of the evidence of the prosecution witnesses, when the basic legal requirement of demand and acceptance of
bribe and sanction order are not proved by the prosecution. It would be the futile exercise.
39. The corruption is spreading like cancer in our great nation. The disease of the corruption has been with us since long time. The common man is
facing this rampant corruption, but a person for the charges of corruption under the Act cannot be convicted on moral and ethics. When the law
provides certain mandatory requirements for proving offence, no shortcut is permitted. In the result, the appeal succeeds.
ORDER
(i) The criminal appeal stands allowed
(ii) The impugned judgment and order of conviction passed in Special case No. 4 of 2000 by the Special Judge (P.C. Act), Aurangabad dated
15.06.2005 is hereby quashed and set aside.
(iii) The appellant/accused is hereby acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 and he is set at liberty.
(iv) The appellant/accused shall furnish PR Bond of Rs.20,000/- (Rupees Twenty Thousand only) with one solvent surety of the like amount so as to
appear before the Higher Court as and when such Court issues notice in respect of any Appeal or Petition filed against the Judgment of this Court and
such Bail Bonds shall remain in force for six months, in view of Section 437-A of the Code of Criminal Procedure Code, 1973, before the special
Judge (P.C. Act), Aurangabad.
(v) Record and Proceedings be sent back to the trial court.
(vi) The Criminal Appeal is accordingly disposed of.
