Sagar Madhav Nevgi vs The State Of Maharashtra on 18 December, 2020

[Cites 30, Cited by 0]

Bombay High Court

Sagar Madhav Nevgi vs The State Of Maharashtra on 18 December, 2020

Bench: Prakash D. Naik

                                                          1 of 64               Cri. Appeal No.320.11.doc


                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                           CRIMINAL APPEAL NO. 320 OF 2011

                                  Sagar Madhav Nevgi
                                  Age:47 years.
                                  Residing at B-13, "Ratna"
                                  Cadal Road, Mumbai 400 016.                  ... Appellant

                                       Versus

                                  State of Maharashtra                         ... Respondent
                                                              .....
                                  Mr. B.G. Tangsali, Advocate for the Appellant.
                                  Mr. A. R. Kapadnis, APP for the Respondent-State.
                                                              .....

                                             CORAM                  : PRAKASH D. NAIK, J.
                                       RESERVED ON                  : 23th OCTOBER, 2020.
                                       PRONOUNCED ON                : 18th DECEMBER, 2020.


                                  JUDGMENT:

1. This appeal under Section 374 of Code of Criminal Procedure (for short 'Cr.P.C.') calls in question the Judgment and Order dated 25 th and 28th February 2011 passed by learned Special Judge in Special Case No.86 of 2004 convicting the appellant for the ofence punishable under Section 7 of Prevention of Corruption Act, 1988 and sentencing him to sufer rigorous imprisonment for Three years and to pay fne of Rs.5,000/- (Five Thousand Only) as well as for the ofence punishable under Section 13 (1)(d) Digitally signed by Manish Manish S. Thatte S. Thatte Date: 2020.12.22 12:08:41 +0530 read with Section 13(2) of Prevention of Corruption Act, 2 of 64 Cri. Appeal No.320.11.doc 1988 sentencing him to sufer rigorous imprisonment for Three years and to pay fne of Rs. 10,000/- (Ten Thousand Only).

2 The brief fact of the case are as under:-

(i) The complainant is having his ofice at 229, Shreeji Chambers, Tata Road No.1, 2 nd Floor, Opera House, Mumbai. One Paras Baldev Yadav and Bablu Baldev Yadav carried out unauthorized construction having ground foor and mezzanine foor near entrance of the building. The said structure was demolished by B.M.C. on 07/06/2002.

(ii) Bablu Yadav fled Writ Petition before High Court against corporation which was dismissed on 14.08.2002. Bablu Yadav gave application on 11.09.2002 for permission to reconstruct.

(iii) Bablu Yadav again commenced construction. Shreeji Chambers Society made complaint to B.M.C. "D" Ward, in January, February and March 2003. No action was taken by corporation. In April 2003 another complaint was sent through Advocate to 'D' Ward. However, no action was taken by B.M.C. Society fled L.C. Suit No.2211 of 2003 on 02.05. 2003 in City Civil Court.

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(iv) On 08.05.2003 accused No.1 Junior Engineer of B.M.C. remained present in City Civil Court during the hearing of the aforesaid suit and informed the Court that the corporation has issued notice under Section 354 (A) of MMC Act for action. No action was taken by BMC. Inspite of ad-interim order not to add to the existing structure, Bablu Yadav continued construction. Complainant followed with accused No.1.

(v) On 25.11.2003, accused No.1 demolished mezzanine structure but did not demolish the ground structure. Complainant followed up the matter.

(vi) In December, 2003 advocate sent letter to B.M.C. to inquire about conduct of oficer and why structure on ground was not demolished. The complainant contacted accused No.1 on his mobile and requested to demolish the structure. Inspite of that structure was not demolished. Accused No.1 told him that he was busy in some other work and he did not have suficient staf and police bandobast.

vii) On 02.01.2004 complainant met accused in "D" Ward and requested to demolish the structure. Accused No.1 demanded Rs. 25,000/- for demolishing structure of 4 of 64 Cri. Appeal No.320.11.doc Yadav. Complainant told the accused that they cannot accept the proposal. Accused No.1 told him that structure will not be demolished. Complainant realized that structure cannot be demolished without meeting demand of accused. The complainant made clear that he will have to consult to society members about demand. The accused No.1 told the complainant to bring Rs. 10,000/- on 06.01.2004 in his ofice between 11.00 to 12.00 and remaining amount to be paid after demolishing structure. Again complainant called accused No.1 and requested to demolish the structure. He gave routine answer that he was busy in other work.

(viii) The complainant decided to lodge complaint to ACB. On 05.01.2004 complainant approached ACB and his complaint was recorded on that day.

(ix) Trap was arranged on 06.01.2004. Accused No.1 was not in ofice. On 07.01.2004 both accused visited ofice of complainant. Accused No.1 accepted amount of Rs.10,000/-. Accused No.2 was booked as he attempted to obtain balance amount of Rs.15,000/- for accused No.1. Amount was kept in vacuum of cap. Anthracene powder was found on the right hand of accused No.1 and inner side of the cap. Accused were apprehended. Investigation was completed. Sanction was obtained. Charge-sheet was 5 of 64 Cri. Appeal No.320.11.doc fled.

3. Charge was framed against the appellant and the accused No.2 vide order dated 24.03.2007 under Section 7 r/w Section 12 of Prevention of Corruption Act, and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. The accused pleaded not guilty to the charges and claimed to be tried. 4 The prosecution examined Four witnesses. PW No.1 Prakash Chimanlal Shah is the complainant. PW No.2 Bharat Ambaji Ekmall is a panch witness. PW No.3 Johny Joseph, Sanctioning Authority. PW No.4 Jagannath Shivram Bade is Investigating Oficer.

5. After recording the evidence of witnesses the statement of both the accused were recorded under Section 313 of Cr. P. C. The appellant stated that when he went inside complainant's ofice. The complainant shook hands with him. He sat down in the chair to the left of complainant. The complainant took out amount and kept it on table and went out. Two persons came in and held his hands. Accused No.2 stated that he just performed his duty. He has nothing to do with the incident. He is innocent. The complainant fled written notes of arguments 6 of 64 Cri. Appeal No.320.11.doc before trial Court.

6. The trial Court convicted the appellant and acquitted accused No.2. While acquitting accused No.2, the trial Court observed that admittedly till 07.01.2004, accused No.2 was not aware about the transaction between complainant and accused No.1. Atleast, there is no evidence to suggest that he had direct connection with transaction between complainant and accused No.1. However, on 07.01.2004, during conversation with complainant, he made few statements that are to be understood and appreciated to understand whether he made any demand from complainant for himself or for accused no.1 in connection with demolition of Yadav's structure. The Court referred to conversation of accused No.2 with complainant and observed that, the question therefore arises as to whether on the basis of conversation, can it be said that, accused No.2 made any demand for accused No.1. The only sentence goes against accused No.2 in conversation is that the complainant is instructed to be ready with Rs.15,000/-. There is nothing on record to suggest that accused No.2 was aware that accused No.1 made demand of Rs.25,000/-. On the day of trap i.e. 07.01.2004 there was no conversation between 7 of 64 Cri. Appeal No.320.11.doc complainant and accused No.1 that complainant was to pay Rs.25,000/- and that he is paying Rs. 10,000/- and that balance amount of Rs.15,000/- is to be paid subsequently. PW No.2 does not really say that accused No.2 asked the complainant to be ready with Rs.15,000/-. He only stated that accused No.2 asked complainant to be ready with balance amount. Such statement would at the most suggest that accused No.2 might be aware of earlier demand made by accused No.1, but in absence of clear evidence, one cannot conclude that he was so aware. The statement of accused No.2 that complainant should be ready with the balance amount of Rs. 15,000/- may strengthen the doubt that accused was aware of the transaction, but the same by itself would not substitute the proof. The accused No.2 did not say as to for whom the amount is to be kept ready though it suggest that balance amount was to be paid to accused No.1 in view of the entire evidence of PW No.1 who alone is aware of demand made by accused No.1 on 02.01.2004. There is no evidence of any demand, much less 10,000/- made by accused No.2 on 07.01.2004 for accused No.1 from complainant. In such circumstances, the beneft of doubt must go in favour of accused No.2 and the same is 8 of 64 Cri. Appeal No.320.11.doc extended to him and hence point No.4 and 5 framed by Court were answered in negative. It would be appropriate to quote point No.4 and 5 framed by trial Court in impugned Judgment which reads as under:-

"4. Whether the prosecution proves that on 7.1.2004, accused no.2 attempted to obtain Rs.10,000/- for accused no.1 and/or abetted In negative accused no.1 for obtaining Rs.10,000/- from complainant for the purpose mentioned in Point No.1

5. Whether the prosecution proves that on 7.1.2004 accused no.2 attempted to obtain In negative Rs.15,000/- for accused no.1 to be paid on future date as gratifcation other than legal remuneration for the purpose mentioned in Point No.1?"

7. The submissions of learned Advocate for the Appellant can be summarized as under:-

(a) It is well settled law that in prevention of Corruption cases the complainant is in a position of accomplice and in absence of corroborative evidence to the testimony of complainant, accused shall not be convicted.

(b) The trial Court in the impugned Judgment, more particularly, in paragraph No.6 has expressed about the 9 of 64 Cri. Appeal No.320.11.doc conduct of the complainant which indicate that the evidence of PW No.1 has to be scrutinized carefully.

(c) PW No.1 is not trustworthy and his testimony in respect of initial demand of Rs.25,000/- for demolition of illegal structure by the appellant is not corroborated by any witness. He deposed that on 02.01.2004 the accused No.1 called him to ofice with Rs. 10,000/- on 06.01.2004 between 11.00 to 12.00 noon. There is no corroboration to this version.

(d) According to PW No.1, on 06.01.2004 ACB laid trap in the ofice of accused No.1. However, the accused was not present. If the appellant had demanded money from complainant, it is obvious that he would have remained present at given time in his ofice on 06.01.2004.

(e) PW No.2 acted as a panch in 10 to 12 cases. He had informed the said fact to PW No.4. He is a habitual panch and his evidence has to be cautiously weighed.

(f) PW No.2 stated that trap amount was not tallied by both the panchas with xerox copy of trap amount. He admitted that second panch has not counted and compared trap notes. He admitted that Anthracene powder was not found on outer side of cap.

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(g) Sanctioning Authority has not applied mind while granting sanction to the prosecution of appellant. The draft sanction order was mechanically accepted without application of mind.

(h) The trial Court has acquitted accused No.2 and on evidence of same witnesses, the appellant has been convicted.

(i) In the absence of foundational facts, presumption under Section 20 of P.C. Act cannot be invoked.

(j) The evidence of witnesses do not inspire confdence.

(k) Demand and acceptance of bribe amount has not been established beyond reasonable doubt.

8. Learned counsel for the appellant has relied upon the following decisions:-

1. Pannalal Rathi Vs. State of Maharashtra (AIR 1979 SC 1191).

2. Motiram Jaising Pawra Vs. State of Maharashtra [1985 (a) Bcom. C. R. 669) Para No. 8,9,10 & 16].

3. P. Satyanarayana Murty Vs. District Inspector of Police (2015 Cr. L.J. 4670 S.C.).

4. Ayyasami Vs. State of Tamilnadu (1992 Cr. L.J. 608 S.C.).

11 of 64 Cri. Appeal No.320.11.doc

5. State of Gujrat Vs. Kumudchandra Shah (1995 Cri.

L.J. 3623 S.C.).

6. B. Jayraj Vs. State of Andhra Pradesh (2014 Cri. L.J. 2433 S.C.).

7. Hira Lal Vs. State of Himachal Pradesh (AIR 1971 S.C. 356)

8. Mohd. Iqbal Vs. State of Andhra Pradesh (1979 Cri.

L. J. 633 S.C.) Sanction - Proof - Validity.

9. State of Karnataka Vs. Ameer Jan (AIR 2008 S.C. 108) Sanction.

10. T. K. Ramesh Kumar Vs. State (2015) SCC 629.

11. State of Punjab Vs. Madan Mohanlal Verma, 2013 AIR SCW 4757.

12. Sharad Savji Tavhare Vs. State of Maharashtra, 2018 (4) Mh. L. J. (Cri.) 702.

13. Shrikant Jadhav Vs. State of Maharashtra (Criminal Appeal No. 132/2010).

14. Dattatraya Ovhal Vs. State of Maharashtra (Criminal Appeal 880/2004).

9. Learned APP submitted that the evidence of witnesses examined by the prosecution is trustworthy. Demand and acceptance of bribe amount has been proved. The evidence of PW No.1 has been corroborated by PW No.2. Bribe amount was recovered from appellant / accused. The conversation between appellant and the complainant is brought on record. The evidence of PW No.1 and PW No.2 is cogent. Trap was successful. Anthracene powder was found in the inner side of cap where tainted currency notes were kept. Presence of Anthracene powder on the hands of accused and cap is 12 of 64 Cri. Appeal No.320.11.doc proved by the evidence of witnesses. Section 20 of P.C. Act can be invoked against the accused. The presumption has not been rebutted by the accused. Sanctioning Authority has applied its mind. The Sanctioning Authority has perused the documents forwarded to him and the application of mind is refected in the sanction order. There is documentary evidence on record to establish that unauthorized structure was carried out by two persons. The society of the building has forwarded complaints to B.M.C. for demolition of unauthorized structure. Bribe amount of Rs.25,000/- was demanded by accused. The frst installment of Rs.10,000/- was accepted by the accused. The evidence of complainant is corroborated by PW No.2. Assuming that the panch witness had acted as panch in other cases, his testimony which is free from doubt cannot be discarded. The charges framed against the appellant were proved beyond all reasonable doubt. The Judgment of the trial Court is based on appreciation of evidence and deserves to be confrmed.

10. I have scrutinized the evidence of witnesses. PW No.1 Prakash Chimanlal Sheth has deposed that his ofice is situated at Shreeji Chambers, Tata Road, Opera House, Mumbai. Unauthorized structure was carried out by Paras 13 of 64 Cri. Appeal No.320.11.doc Yadav and Bablu Yadav abutting to the gate of the building. The said structure was demolished by B.M.C. on 07.06.2002. Writ Petition preferred by the aforesaid person was dismissed on 14.08.2002. Bablu Yadav gave application to B.M.C. 'D' Ward on 11.09.2002 for permission to reconstruct. He started construction at same spot in December 2002 or January 2003. Society made complaint to 'D' Ward in January, February and March 2003. In April 2003 complaint was sent through advocate. No action was taken by B.M.C. Suit was fled by society in the City Civil Court. On 08.05.2003 accused No.1 was present in the Court. He informed the Court that notice has been issued under Section 354 (A) of MMC Act by corporation for action. In spite of the ad-interim order not to add to the existing structure, construction was continued by Bablu Yadav. Appellant demolished the mezzanine structure but did not demolish the ground structure. On 25.11.2003 letter was forwarded to 'D' Ward Ofice, B.M.C. to inquire about the conduct of oficer and why the structure on the ground was not demolished. The complainant followed up with accused No.1. Accused No.1 told him that he was busy in some other work and did not have suficient staf and police bandobast. He met accused 14 of 64 Cri. Appeal No.320.11.doc No.1 on 02.01.2004 in his ofice and requested him to demolish the structure. Accused No.1 demanded bribe money of Rs.25,000/- for demolishing the structure of Yadav. The complainant realized that the structure would not be demolished without meeting demands of accused (appellant). He unwillingly told him that he will pay. He has to consult with the ofice bearers of society. He was told to bring Rs.10,000/- on 06.01.2004 in his ofice between 11.00 am. to 12.00 noon and remaining amount after demolishing the structure. The complainant thereafter gave call to accused No.1 and requested to demolish the structure. The accused gave routine answer that he was busy in other work. On 05.01.2004 the complainant approached ACB. His complaint was recorded (Exh.18). He visited ACB ofice on 06.01.2004 with Rs.10,000/- He was introduced to panchas. Anthracene powder was applied on currency notes. PW No.2 was instructed to remain with complainant and to listen the conversation and also observe the transaction between complainant and accused. Those other panchas to remain with raiding party. They proceeded to "D" Ward ofice of B.M.C. Accused No.1 was not there. He made inquiry with person by name Mhatre about the accused. They waited for some time. Mhatre told 15 of 64 Cri. Appeal No.320.11.doc him that there were no chances of accused No.1 coming on that day. The complainant gave a call to the accused through P.C.O. at the gate on the cell number of accused. According to PW No.1 the accused No.1 told him that it was not possible for him to come on that day. He told him that he will come on the next day to his ofice to take the money. Panchnama was prepared. Investigation Oficer called him on the next day to ACB ofice at 08.30 a.m. On 07.01.2004 he again went to ACB ofice. Panchas were present. Amount of Rs.10,000/- was handed over to the ACB. Anthracene powder was applied. PW No.1 and PW No.2 proceeded to ofice of PW No.1. Accused No.1 had told PW No.1 that he would come by 11.30 a.m. to 12.00 noon. Till 12.15 the accused did not come. Complainant gave call to accused No.1. He told him that he was busy. He would come by 02.00 p.m. However, he did not come by 02.00 pm. Complainant may remind him about it. The accused No.1 did not come till 02.00 pm. The complainant gave call to accused No.1. The accused No.1 stated that, he is on the way and he will be reaching within few minutes. Accused No.1 and accused No.2 came to ofice. PW No.1 stated to accused that he is late. The accused No.1 stated that they were busy in work at C.P. tank. The 16 of 64 Cri. Appeal No.320.11.doc accused No.2 said that they would demolish the illegal structure of Yadav and he should not worry. Accused No.1 asked him whether he has kept Rs. 10,000/- ready. He said yes. Accused No.1 said give Ten Thousand Rupees. PW No.1 handed over Rs.10,000/- to accused No.1. He accepted notes with right hand. He took out his cap with his left hand and held it in his left hand in inverted position. He kept trap amount in the vacuum of the cap. He kept cap and trap amount in his left hand. The amount was in his cap and he was holding the cap in his left hand. The accused No.2 told him that his work would be completed within 8 to 10 days and he should keep ready balance amount of Rs.15,000/-. The complainant stated that he would keep his promise. Complainant gave pre-determined signal to raiding party. The member of raiding party then entered into ofice. Accused were apprehended and amount was recovered. Other formalities were completed.

11. In the cross-examination PW No.1 stated that their secretary and he was appointed by the Managing Committee of Society by resolution for taking action in the matter of removal of unauthorized construction put up by Yadav. Mr. Chetan Shah was Honorary Secretary of the Society. He does not remember as to in what capacity he 17 of 64 Cri. Appeal No.320.11.doc signed letter dated 29.03.2003 addressed to Sr. Inspector of Police, D. B. Marg Police Station. Letter dated 29.03.2003 was sent to B.M.C. and it was addressed to Ward Oficer of "D" Ward not to accused. In none of the letter there was reference of accused. The gist of the letter was to stop and remove encroachment made by Mr. Yadav by taking steps. Such request was made to Ward Oficer. The Ward Oficer did not take any action. Letter was forwarded by Advocate to the Assistant Municipal Commissioner "D" Ward, B.M.C. on behalf of society. He met accused No.1 during the period from 08.05.2003 to December, 2003 and then on 02.01.2004. For the frst time accused no.1 demanded bribe on 02.01.2004. Accused kept on putting him of on the pretext that he was busy in some other work and that he has insuficient staf and that there was no Police bandobasta available for demolition. He was not annoyed when the accused made demand of Rs. 25,000/- on 02.01.2004, although, demand was illegal. He refused to pay the amount on 02.01.2004 because he did not want to pay. On 02.01.2004 he told the accused that amount demanded by him was on higher side and before paying such amount, he will have to consult Committee Members of Society. Initially, he refused but since the 18 of 64 Cri. Appeal No.320.11.doc accused said that the work will not be done, he made above statement. He was of the opinion that, let the news of bribe go to committee members and let them decide as to whether bribe is to be paid or not, if they wanted to get work done in that way. He was sure that until bribe is paid the accused will not demolish remaining structure. Mezzanine foor was demolished by accused and his staf prior to 02.01.2004. The demand for bribe was for demolition of ground foor. The accused did not demand any amount to demolish mezzanine foor and no amount was paid to him. He did not feel it necessary to make complaint to Superior Oficers of accused in connection will his demand of bribe since Superior Oficers did not take any action. Pursuant to their letter they may not take action against accused. The terms and mode of payment of bribe were fnalized between him and the accused on 02.01.2004. It was subjected to consultation with committee member. He did not state such words like 'subject to consultation with committee members' before ACB Oficer. He do not remember whether he informed ACB oficer that, his consent was conditional while recording FIR. He cannot explain as to why such statement is not recorded in FIR, in such manner as he do not 19 of 64 Cri. Appeal No.320.11.doc remember whether he said so before Police. He did get back to the Committee Members after demand by accused. He do not remember the date specifcally. He cannot state the date on which he put the proposal before the Committee members. He put such proposal only to the Chairman, who said that they should lodge the complaint against the accused and was not willing to pay the amount of accused. He contacted accused on 04.01.2004 with request to demolish the structure to give him another opportunity to do his job without accepting bribe. He did not know that accused as Junior Engineer do not have power to demolish structure of his own and issue notice under Section 351 and 354 (A). He do not have documentary evidence to show that he met accused on 02.01.2004. Mezzanine structure was demolished on 25.11.2003. He did not meet Ward Oficer or any other Oficer before meeting accused. He met accused for the frst time on 08.05.2003 in the Court in connection with Civil Suit. When the demolition was carried out accused No.1 and staf were present and they demolished only Mezzanine foor. The Oficers from D.B. Marg Police Station were present at site. He do not remember whether he stated before Police that on 25.11.2003, building and 20 of 64 Cri. Appeal No.320.11.doc factory division of "D" Ward, Nana Chowk, BMC demolished mezzanine foor. He cannot explain why portion marked 'B' is recorded in the manner so recorded. He was present when demolition was carried out. He did not meet any Superior Oficer of accused No.1 to fnd out why ground foor structure was not demolished. He wrote letter to B.M.C. on 25.11.2003, thanking for taking demolition action and requesting to demolish complete structure. He is not aware whether society has passed any resolution declaring him as illegal occupant of society premises. He had approached Deputy Registrar of co-operative Society with the request directing committee members to treat them as members of society. He is not aware whether society and architect made complaint against such occupation by them.

12. PW No.2 Bharat Ambaji Ekmall acted as panch witness. According to him he was called to ACB ofice on 05.01.2004. He visited ACB ofice at 04.30 pm. with panch No.2. They were instructed to visit ACB ofice on 06.01.2004. They visited ofice of ACB on 06.01.2004. They were introduced to complainant. They were asked to act as Panch in trap. He was instructed to accompany complainant and to verify and hear conversation between 21 of 64 Cri. Appeal No.320.11.doc complainant and accused regarding transaction of amount. The complainant made arrangement of currency notes of Rs.10,000/-. Anthracene powder was applied to currency notes. Pre-trap panchnama was drawn (Exh.37). They left ACB ofice at 12.00 noon and proceeded towards "D" Ward, B.M.C. He went to B.M.C. Ofice along with complainant. Complainant inquired about accused. He was not in cabin. One Mr. Mhatre present in the ofice informed that accused No.1 is not in ofice but he would come shortly. They waited for half an hour. Mr. Mhatre than said that accused No.1 has not come and he may not come. Complainant called accused No.1 from public telephone booth. Complainant informed PW No.4 that he called up accused who informed that he will come on next day to the ofice of complainant at about 11.30 am. to 12.00 noon. Thereafter, the trap was withdrawn. The trap withdrawal panchnama was recorded (Exh.38). On 07.01.2004 PW No.2 again visited ACB Ofice. Amount of Rs.10,000/- was brought by complainant. He was instructed to accompany complainant and to hear conversation between accused and complainant and witness, the transaction between them. Pre-trap panchnama was recorded on 07.01.2004 (Exh.40). At about 10.00 to 10.30 am. all of them left ACB 22 of 64 Cri. Appeal No.320.11.doc ofice. They reached Opera House. Complainant's ofice was on second foor in Shreeji Chamber. PW No.2 proceeded with complainant towards his ofice. They reached ofice of complainant at about 11.30 am. They waited up to 12.30 pm. At about 01.00 p.m. complainant called accused on phone. Complainant informed that the accused is coming shortly. They waited for accused. At 02.00 p.m., accused arrived. He was accompanied by one more person. Both came in the inner cabin in the ofice of complainant, where complainant and PW No.2 were sitting. Accused No.1 informed that he was busy in work. Accused No.2 informed complainant not to worry and that they would demolish unauthorized construction within a week and his work would be done. Accused No.1 asked whether Rs.10,000/- is ready. Complainant said yes to which accused No.1 said give it "De do". Complainant took amount from his right hand pant pocket by right hand and handed over to accused No.1 who accepted it by using his right hand and took out cap by holding fap by left hand and kept amount in the vacuum of the cap and held cap in left hand by folding it. Accused No.2 stated that his work will be done and he should not worry and keep balance amount ready by saying that his work would be done and 23 of 64 Cri. Appeal No.320.11.doc he should not worry keep ready balance amount. The complainant gave signal to raiding party. ACB caught hands of both the accused. Panch No.2 was asked to take out cap from the hand of accused No.1 and open it. The trap amount was found in the cap. Panch No.2 was asked to examine hands of accused No.1. His right hand and fngers showed light greenish glow under UV light. One mobile phone was recovered from accused No.1 during his personal search rough sketch of ofice of complainant was drawn.

13. In the cross-examination, PW No.2 stated that, he acted as panch in all about 10 to 12 cases of ACB. He did state before PW No.4 that he acted as panch in many cases. He do not remember whether he requested him not to act as panch in any other case. It might have happened that PW No.4 requested him to act as panch and he consented immediately. Nothing else except the above conversation occurred between him and PW No.4 on 06.01.2004 when he requested him to act as panch at 10.00 am. His antecedents were also inquired. He did inform PW No.4 that he acted as a panch previously. He cannot assign any reason as to why the said fact is not mentioned in panchnama. He is personally not aware of 24 of 64 Cri. Appeal No.320.11.doc conversation between PW No.1 and accused on phone on 06.01.2004 and 07.01.2004. On 07.01.2004 when they were sitting in ofice of complainant, it was complainant who called accused on phone and not otherwise. He do not remember whether there was any conversation between PW No.2 and PW No.4 after accused were apprehended on 07.01.2004. Article 3-cap was handed over to him to show demonstration as to how accused No.1 kept the amount in the cap and held it in his left hand by folding it. He stated that he did not remember as to in what manner the accused No.1 folded his cap and kept it in his left hand. He cannot demonstrate. He cannot state as to whether without using right hand, the accused No.1 could not have folded his cap. The outer side of cap did not show presence of Anthracene powder when examined under UVL and that only inner part that is vacuum or hollow portion showed presence of Anthracene powder and that they have signed and encircled that portion. He admitted that there is no signature and encircled portion in the vacuum of article 3- cap. He cannot assign any reason as to why the said portion is not encircled and why their signatures are not present in the vacuum. He himself and the other panch did not wash their hands before commencement of post trap 25 of 64 Cri. Appeal No.320.11.doc panchnama. They were not given opportunity by PW No.4 to wash their hands after examination of notes and before examining hands of accused No.1. He is not sure but his hands might not have been examined under UVL before examining hands of both the accused. The complainant called accused twice between 11.30 am. to 02.00 pm. on 07.04.2004 and called him to ofice. Accused did not come immediately but came after some time.

14. PW No.3 Johny Joseph is Sanctioning Authority. Sanction order dated 03.08.2004 was marked as exhibit

43. According to him he did not agree that act of granting sanction is a sacrosanct act. It is an act done after application of mind. It is not correct to say that it is part of responsibility of Sanctioning authority to ensure by application of mind that public servant is not victimized. Sanctioning authority has to go through all relevant papers and apply its mind before according sanction. B.M.C. had received papers requesting grant of sanction to prosecute accused on 06.07.2004. The covering letter dated 03.07.2004 was addressed to him. He sent it to chief oficer, inquiry, for processing the same and submitting them to him through law oficer and Joint M.C.I. and Addl. Municipal Commissioner, concerned. He expected chief 26 of 64 Cri. Appeal No.320.11.doc oficer to examine and process papers. He received duly processed papers on 28.07.2004. Chief Oficer, drafted fnal sanction order. He also received draft sanction order from ACB (Exh.46). Some minor language corrections were made and his name is added in fnal sanction order (Exh.43). Nothing on the facts of the case were changed. Date and number of letter mentioned on frst page and the date mentioned on last page of the Sanction Order is written in ink and that it is not in his hand writing. The dates and numbers were not mentioned when the fnal sanction order was received by him after processing the papers from his subordinates. The fnal sanction order does not show the date when he signed it. He did not enter the date in Exh.43 when he signed, because it is not required to do so. The date and number is put by dispatch section. He do not remember which accused demanded the bribe amount and why it was demanded. Permission was granted to him to refresh memory. He further stated that bribe amount was demanded by accused No.1. He cannot say whether accused No.2 had no knowledge till 07.01.2004 about the demand of bribe made by accused No.1 from complainant. He cannot say with reference to Sanction Order as to why the reference of furtherance of 27 of 64 Cri. Appeal No.320.11.doc common intention is made in connection between item No.1 and item No.2 relating to accused No.2 and there was no common intention between accused No.1 and accused No.2 prior to 07.01.2004. He was not aware about pendency of suit between B.M.C. and Shreeji Chambers premises Co-operative Society in respect to shed under question in respect of which bribe was demanded. He was not aware that complainant was member of the society. Money was demanded for razing unauthorised structure in the compound of society. He was not aware of details of structure. He was not aware whether part of structure was authorized and part was unauthorised. He was not aware whether unauthorised structure was demolished by B.M.C. without demanding bribe. He is not aware as to whether the bribe was made in connection with unauthorized structure in respect to which the suit was pending before City Civil Court. It is not his practice to sign papers by keeping date blank. It was not necessary for him to put in date below his signature.

15. PW No.4 Jagannath Shivram Bade was attached to ACB. He recorded complaint of PW No.1. He narrated the events after PW No.1 had approached ofice of ACB for lodging complaint. He has referred to pre-trap panchnama, 28 of 64 Cri. Appeal No.320.11.doc withdrawal panchnama and trap panchnama. He stated that on 06.01.2004 PW No.1 and PW No.2 went inside ofice of building and factory department. After some time, both came out. Complainant approached public booth and made call to someone. Then he came to him and informed that accused Nevgi is not present in ofice and that he called Nevgi (Accused No.1) and informed about the conversation with Nevgi. It revealed that Nevgi would come to complainant's ofice at Opera House, on the next day. Trap was withdrawn. On 07.01.2004 again trap was arranged. Complainant and panch No.1 went to ofice of complainant, others waited outside. It was revealed that accused No.1 would come before 02.00 p.m. Two persons came and proceeded towards ofice of complainant. After some time, complainant, panch No.1 and accused came out of the chamber and were standing near the ofice door. At that time, complainant gave signal to raiding party. They caught hands of both the accused. They were taken inside the ofice of complainant. Complainant and panch No.1 were asked to come inside. He asked panch No.1 about conversation between complainant and Nevgi. The same is written in post trap panchnama. Panch No.2 was instructed to take out cap held by accused No.1. The cap contained 29 of 64 Cri. Appeal No.320.11.doc some currency notes. Panch No.2 counted it. There were Ten notes of Rs.1,000/- denomination. The amount was examined under UVL. It showed light greenish glow. The amount was sealed. Cap was examined under UVL, it showed light greenish glow at the inner side of the cap. Said portion was encircled by ball pen. He afixed label out side the said circle. He alongwith panchas put signatures on the label. Thereafter, hands and clothes of accused No.1 were examined under UVL. It showed presence of Anthracene powder. Subsequently hands of complainant were examined under UVL. It showed presence of Anthracene powder. Complainant's right side pant pocket, right hand fngers and palm showed presence of Anthracene powder. He prepared rough sketch of the place where the incident occurred. He recorded statements. The label present on the cap was afixed by him. He do not know why the encircled portion is not present as deposed by him in article 3. It may be because the side portion of the inner side of the cap is dark blue, it is not clearly visible or may be that the inner portion of the cap was little oily and that thereafter either the dot pen ink might not have operated or appeared or even it might have vanished in due course of time. Both accused were arrested. Both 30 of 64 Cri. Appeal No.320.11.doc gave their statements in writing supplementary statement of complainant was recorded. All documents and draft sanction order were sent to B.M.C. ofice. After receiving sanction, charge-sheet was fled.

16. PW No.4 was cross-examined by the Advocate for defence. He stated that it is the duty of Investigating Oficer to see to it that panch should not be repeated in trap cases, as far as possible. It is not necessary to mention in panchnama as to whether pancha acted as panch witness in earlier cases. He did ask both the panchas as to whether they acted as panch witnesses in earlier cases. It is not correct to say that both panchas informed that they acted in 12 cases, earlier. They informed him that they did not act as panch earlier. He was not aware whether PW No.2 had acted as panch in any other case. He did not inform that he acted as panch earlier. Complaint was only against accused No.1. Till they reached Shreeji Chambers building, they were under impression that they have to apprehend one person called Nevgi. He did not specifcally instruct any of the constables to catch or apprehend accused-Nevgi. He did not talk to complainant after he gave signal and before they apprehended accused. After complainant gave signal, he could not see movements in 31 of 64 Cri. Appeal No.320.11.doc the ofice of complainant from the position where he was standing. Since they were not aware as to who was Nevgi and Mhatre, both accused were apprehended, though complaint was made against one, because both accused entered Shreeji Chambers. Hands of panchas were not examined before they left ACB ofice. Their hands were examined to show that Anthracene powder was not present on their hands. He cannot assign any reason as to why hands of panchas were not examined panchas before proceeding for trap. The panchas showed their hands under UVL and therefore he did not examine their hands separately. He did not mention in pre-trap panchnama that panchas examined their hands under UVL. He cannot assign any reason as to why it was not so recorded. Accused No.1 was having cap in his left hand. He did not try to free himself when the constables caught hold of his hands. Accused No.1 could have dropped the cap from his hand. The amount was not in the vacuum of cap but it was between fap and the inner portion of the cap. It is not mentioned in panchnama that trap amount was found in the fap of the cap because it is mentioned that it was found in inner side of cap. Article-3 cap, does not show the signatures of panchas at the inner side of cap. In the 32 of 64 Cri. Appeal No.320.11.doc sketch (Exh.41) the position of the accused is not mentioned. He had referred all papers including Ex.24 to 29 which were taken in charge during investigation to sanction authority.

17. The trial Court has believed the prosecution case against the accused No.1 and disbelieved it against accused No.2 who was given beneft of doubt and acquitted. Before dealing with various points, the trial Court felt that it is necessary to mention some of the facts to understand and appreciate the evidence of prosecution witnesses properly. The trial Court in Paragraph No. 6 of the Judgment has narrated the conduct of the complainant and observed that cautious approach by the Court to appreciate the evidence of complainant is expected and other important factor that is to be borne in mind is that the trap was laid and materialized at the ofice of complainant. Paragraph No.6 of the judgment reads as follows:-

"6. Before I deal with various points that arise for my consideration, it is necessary to mention some of the facts to understand and appreciate the evidence of the prosecution witnesses properly. To start with, I would say, the complainant appears to me a person having 33 of 64 Cri. Appeal No.320.11.doc grievances against everybody. He is intelligent but very suspicious. He is alert and attentive but draws conclusion on surmises and conjectures. At times, he makes bold and wild allegations against the court staf, Apps., advocates for accused so also Judges. It appears that according to him, anything can be managed anywhere. He made allegations about the manner in which the evidence is recorded, about allegations about the manner in which the evidence is recorded, about the manner in which the app's and Sr. Judges have conducted the present trial, which according to him is unusual. However, by saying so, this court do not intend to suggest that complainant can lodge false complaint against accused. Lodging of complaint and making allegations are two diferent things. The complaint will face consequences of the allegations made by him against the Judiciary. The above observations would only expect cautious approach by the Court to appreciate the evidence of complainant. The other important factor that is to be borne in mind is that the trap was laid and materialized at the ofice of complainant. Keeping in mind the above status, let us now discuss evidence of the prosecution witnesses to answer various points that are recorded herein-above."

18. It is a golden principle of criminal law that the burden of proof required to be discharged by prosecution is one of proof beyond reasonable doubt. In Sujit Biswas 34 of 64 Cri. Appeal No.320.11.doc Vs. State of Assam (2013) 12 SCC 406 it was observed as followed:- "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large diference between something that 'may be' proved and something that 'will be proved".

19. In A. Subair Vs. State of Kerala (2009) 6 SCC 587, it was observed that, it needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal ofence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratifcation, which are vital ingredients necessary to be established to record a conviction.

20. Demand of illegal gratifcation is sine qua none for constituting an ofence under P.C. Act. Mere receipt of the amount by accused is not suficient to fasten guilt in the absence of any evidence with regard to demand and acceptance of the amount of illegal gratifcation. Before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. On proof the acceptance of illegal gratifcation presumption can be 35 of 64 Cri. Appeal No.320.11.doc drawn under Section 20 of the Act that such gratifcation was received fordoing or forbearing to do any oficial Act. Proof of acceptance of illegal gratifcation can follow only if there is proof of demand. The presumption under Section 20 is a rebuttable presumption and the burden placed on accused for rebutting presumption is one of preponderance of probabilities.

21. The case of the prosecution is that, unauthorised construction was carried out at the gate of the building namely Shreeji Chambers at Opera House, Mumbai by two persons. The complainant is having ofice in the said building. The structure was demolished by B.M.C. The said person again restarted the construction of Shreeji Chambers Society. Complaints were fled with B.M.C. No Action was taken. Suit was fled by Shreeji Chambers Society. Notice of motion was fled for interim reliefs. Ad-interim order was passed on 09.05.2003. The order mentions that, Mr. S.M. Nevgi Jr. Engineer (Civil) 'D' Ward present and states that the corporation has issued notice under Section 354(A) of MMC Act alongwith map and it shows that according to MMC, the defendant no.1 erected construction illegally on the footpath and the B.M.C. is going to take action as per notice. He further 36 of 64 Cri. Appeal No.320.11.doc stated that present defendant no.1 has stopped the work. The defendant no.1 present in Court makes statement that he is not carrying out any construction. It was further observed that there is a controversy regarding the premises on which the construction is erected i.e. as per plaintif it is in their premises and as per the defendant No.1 alleged construction is in the compound of Baburao Supariwala. The Court granted ad-interim injunction in terms of prayer clause (a) (i) (iii) and (iv) of the notice of motion. Thus, injunction was granted from making any further construction which has already come up at the entrance gate of the said property, inducting any third person in the structure and preventing access of the plaintif's members in any manner to the suit property. The appellant demolished the mezzanine structure but did not demolish the ground structure. The complaints were forwarded to BMC. According to complainant he met the appellant on 02.01.2004 and requested for demolishing structure. He demanded Rs.25,000/- as bribe money for demolishing the structure of Yadav. The appellant told the complainant to bring Rs.10,000/- on 06.01.2004 in his ofice. The complainant approached ACB on 05.01.2004 and lodged the complaint. Although the alleged demand 37 of 64 Cri. Appeal No.320.11.doc was made on 02.01.2004, the complaint to ACB was fled on 05.01.2004. On 06.01.2004 the complainant visited ACB ofice. Trap was arranged. Complainant and panch No.1 visited the ofice of "D" Ward, B.M.C. however, accused was not there. Complainant enquired with one person namely Mhatre about accused, who told him that Nevgi would come after some time. Thereafter Mhatre said that accused No.1 would not come. The raiding party then returned to the ofice of ACB. Withdrawal panchnama was recorded. It is pertinent to note that according to PW No.1, the accused No.1 had told him to bring amount of Rs.10,000/- on 06.01.2004. However, the accused was not present in the ofice. If the accused had demanded the bribe amount from the complainant, which was to be given to him on 06.01.2004, he would have been in the ofice for collecting the said amount. The version of complainant about demanding amount of Rs.25,000/- on 05.01.2004 is uncorroborated testimony. According to PW No.1 he made call to accused from P.C.O. which was installed at the gate of ofice and the accused told him that it is not possible for him to come on that day and he will come to his ofice on next day to take the money. It is surprising to note that the complainant was having the Cell Number of the accused 38 of 64 Cri. Appeal No.320.11.doc but he did not give call to him before proceeding to his ofice. On perusal of evidence of PW No.2 and PW No.4, it is apparent that both these witnesses have not heard the conversation between the complainant and the accused while making such call. These witnesses have stated that they were informed by PW No.1 that he had called accused No.1 and he stated that he would visit the ofice of the complainant. It is also relevant to note that according to PW No.1 when he had called to accused No.1 from PCO he told him that he would come to his ofice for collecting money. However, as per the evidence of PW No.2 and PW No.4 they were only informed that the accused had stated that he would visit the ofice of complainant. There version does not mention that the visit of the accused No.1 to the ofice of complainant was for collecting money. Thus, the complainant's version of frst demand by the accused dated 05.01.2004 and 06.01.2004 is not corroborated by any cogent evidence. The evidence of PW No.1, PW No.2 and PW No.4 is contradictory in that regard. According to PW No.1, on 06.01.2004, when by made call to accused no.1, he was told that accused would come to his ofice on next day. The time of visit was not mentioned. However, PW No.1 attended ofice of ACB on 07.01.2004 at 08.30 am for 39 of 64 Cri. Appeal No.320.11.doc trap. They proceeded to ofice of PW No.1. PW No.1 then stated that the accused had told him that he would come him by 11.30 am. to 12.00 noon on 07.01.2004 and in the event if he is late he should remind him about the same. When did the accused told PW No.1 time of visit ? The earlier version do not refer to time. PW No.1 did not disclose to PW No.2 and PW No.4 on previous day that accused No.1 would visit on next day at 11.30 am. It is pertinent to note that accused did not come till 12.15 pm, the complainant gave call to him and he was told that he was busy and he will come by 02.00 pm. Again till 02.00 pm accused did not come. PW No.1 again dialed the accused. Subsequently the accused came to the ofice of the complainant. Thus PW No.1 kept on making calls to accused. Surprisingly he was accompanied by accused No.2. It is not case of the complainant that any demand was made by accused No.2. However, according to prosecution accused No.1 and 2 had visited the ofice of the complainant. The conversation indicates that accused No.1 demanded the amount of Rs.10,000/- and the accused No.2 assured that the work of complainant would be done. He should keep ready balance amount of Rs.15,000/-. According to complainant accused No.1 would visit his 40 of 64 Cri. Appeal No.320.11.doc ofice for collecting money. Hence, question of accused No.1 visiting his ofice along with accused No.2 who was not privy to the transaction between complainant and the accused does not arise. The accused No.2 was implicated in this transaction by attributing overtact of assuring the work of demolition and asking complainant to keep the balance amount of Rs.15,000/- ready. The trial Court has disbelieved the involvement of accused No.2. However, the trial Court has accepted the version of complainant to convict the appellant. The fact that the accused No.2 was implicated in this case also create doubt about the veracity of evidence of the complainant. The testimony of witnesses regarding involvement of accused No.2 has not been accepted by Court. The evidence of same witnesses was found to be reliable for convicting appellant. It would be relevant to reproduce the charge secondly and thirdly framed against the accused.

"SECONDLY: That you accused No.2 abovenamed in the month of January, 2004, was employed and then attached to Building and Factory Department, "D" Ward of Mumbai Municipal corporation for Greater Mumbai at Mumbai, and as being an employee of Mumbai Municipal Corporation constituted for Metropolitan city of Mumbai, at Mumbai and as such you accused no.2 being a public servant

41 of 64 Cri. Appeal No.320.11.doc within the meaning of Section 2(c) of the Prevention of Corruption and as such functioning or performing public duty and as such public servant, you accused no.2 and accused no.1 abovenamed both did demand, accept and/or agreed to accept and/or did attempt to obtain in furtherance of your common intention, knowingly and willfully to wit a sum of Rs.10,000/-

(Rupees Ten Thousand only) on 07.1.2004 in between 11.00 a.m. to 12.00 p.m. at ofice of complainant i.e. Prakash Chimanlal Sheth of Mumbai situated and located at Room No. 229, Second Floor, Shreeji Chamber, Tata Road, Opera House, Mumbai for both of you being frst installment out of bribe amount of Rs. 25,000/- (Rupees Twenty-fve Thousand Only) in furtherance of your common intention knowingly and willfully by aided and abetted with each other in pursuance and/or consequences of abetment with each other as gratifcation other than legal remuneration as a motive and/or reward from one Prakash Chimanlal Sheth of Mumbai for doing or showing favour to said Prakash Chimanlal Sheth of Mumbai by taking action against unauthorized structure or construction by way of demolition action at an earliest date and thereby committed an ofence punishable under Section 7 r/w 12 of Prevention of Corruption Act, 1988 and within my cognizance.

THIRDLY : That you accused nos.1 and 2 abovenamed, being public servants as afore stated and more particularly as mentioned in Charge Nos. 1 and 2 hereinabove, on 07.01.2004 at or around 2.00 p.m. or so at the ofice of the complainant i.e. Prakash Chimanlal Sheth of Mumbai, which is situated and located at Room No.229, on Second Floor of Building 42 of 64 Cri. Appeal No.320.11.doc known as Shreeji Chambers, Tata Road, Opera House, Mumbai did obtain in furtherance of your common intention knowingly and willfully a pecuniary advantage to wit a sum of Rs. 10,000/-

(Rupees Ten Thousand only) by you accused no.1 abovenamed by aided and abetted with each other in pursuance and consequences of your abetment from one Prakash Chimanlal Sheth of Mumbai, as a motive an/or reward for the purpose of doing or showing aforesaid favour as stated and as more particularly as mentioned in Charge Nos.1 and 2, hereinabove. And you accused no.1 abovenamed and in presence of accused no.2 abovenamed at material date, time and place by corrupt and illegal means or otherwise by misused and/or abused your positions as such public servants and/or while holding ofice as public servants by both of you while and did acted and obtained knowingly and willfully by aided and abetted with each other in pursuance and/or consequences of your abetment by and between both of you and thereby committed and ofence punishable under section 13 (1) (d) read with sections r/w 13 (2) of the Prevention of Corruption Act, 1988, and within my cognizance."

For the reasons referred to hererinabove, the trial Court has given beneft of doubt to accused No.2. It is pertinent to note that prosecution has relied upon the conversation between accused No.1, accused No.2 and PW No.1 which had ensued on 07.01.2004 which is the foundation of case. Accused No.2 was charged under 43 of 64 Cri. Appeal No.320.11.doc Section 12 of the P.C. Act. Accused No.1 and accused No.2 were jointly charged for aiding and abetting with each other in pursuance and/or consequence of abetment by both.

22. The explanation given by the accused/appellant is plausible. He has stated that to perform his duty he had to go to the ofice of the complainant. The visit was made during the ofice working hours. The case of the prosecution is under shadow of doubt. The accused cannot be convicted on the basis of such evidence which is under cloud of suspicious. The complainant appears to be member of Shreeji Chambers Co-operative Society. His ofice is situated in the said building. One Chetan Shah was the Honorary Secretary of the Society. According to complainant, he was authorized by the society to initiate action in respect to unauthorised construction. He has referred to resolution by the society about his appointment. However, no such document produced by him. It is admitted that most of the correspondence was made by in-charge of the society with the ofice of B.M.C. All the complaints were addressed to the Ward Oficer or to Assistant Municipal Commissioner and not to the appellant. The evidence of PW No.1 also indicates that he 44 of 64 Cri. Appeal No.320.11.doc had met the appellant during the period from 8 th May, 2003 to December, 2003. The appellant had not demanded illegal gratifcation during this period. Amount was allegedly demanded by the accused No.1 on 02.01.2004. According to PW No.1 during the period from May to December 2003, accused kept on putting him of on the pretext that he was busy in some other work and that he has in suficient staf and non-availability of bandobast. He do not remember whether he told the accused that demand was illegal and he would not pay amount. He also told the accused on 02.01.2004 that amount demanded was on higher side and before paying such amount he will have to consult Committee members of Society. He was of the opinion that news of bribe should go to Committee Member and let them decide as to whether bribe is to be paid or not if they wanted to get work done in that way. He stated that the demolition of the mezzanine foor was done by accused and staf prior to 02.01.2004. The demand of bribe was for demolition of ground foor. The accused did not demand any amount to demolish the mezzanine foor. For demolishing of mezzanine foor, no amount was paid to accused. No complaint was made to the superior oficer against the demand of bribe. It is not clear that whether 45 of 64 Cri. Appeal No.320.11.doc statements of the members of the society were recorded. The Secretary Mr. Chetan Shah or any other member of society were not examined by the prosecution.

23. PW No.1 has deposed that he had approached the Committee Member after demand by accused. He does not remember date. He does not remember the date on which he put the proposal before Committee. The proposal was put only to the Chairman who told him that complaint should be lodged against the accused as they were not willing to pay the amount. This was during the period from 02nd and 5th January, 2004. Mezzanine structure was demolished on 25.11.2003. He met accused for the frst time on 08.05.2003 in the Court in connection with the Civil Suit. The demolition work was carried by accused No.1 and junior staf. The oficials from D.B. Marg Police Station were present to maintain law and order. He did not remember whether he stated that before 25.11.2003 the building and factory division "D" Ward, Nana Chowk, BMC demolished the mezzanine foor. He cannot explain as to why portion mark 'B' is recorded in the manner so recorded. He was present when the demolition was carried out. From analysis of evidence of this witness it is apparent that, suit proceedings were pending in Court 46 of 64 Cri. Appeal No.320.11.doc relating to subject unauthorized construction. For long time, he was following up with accused No.1 According to PW No.1 mezzanine structure was demolished by accused No.1 and staf. No bribe was demanded for work. The order passed by Civil Court indicate that there was dispute about premises on which construction is erected i.e. as per plaintif it is in their premises and as per defendant no.1. the structure is in compound of Supariwala. The accused No.1 had intimated complainant that for want of staf and bandobast action was not initiated. While mezzanine foor was demolished police force was deployed. All the complaints were addressed to B.M.C. and not to appellant. There is no evidence on record to show that it was within exclusive domain of appellant to carry out demolition of ground structure. The society of building did not approach civil Court for further relief since demolition of ground structure was not carried out. Inspite of knowing that alleged demand of bribe is illegal, the complainant agreed to approach society for its approval, to know if they want to carry out work in that manner. Apparently, complainant was following accused for satisfying alleged demand of bribe and not vice versa. The demand dated 04.01.2004, 06.01.2004 is sole testimony of PW No.1. The evidence 47 of 64 Cri. Appeal No.320.11.doc does not inspire confdence to fasten guilt upon accused.

24. According to PW No.1 on 06.01.2004 he went to ofice of accused for trap alongwith PW No.2. Accused no.1 was not there. He inquired with one person by name Mhatre about accused who told that accused No.1 would come and latter told that he is not coming. Withdrawal panchnama dated 06.01.2004 (Ex.38) mentions that while PW No.1 and panch went to ofice of accused on 06.01.2004 inquiry was made with employee about accused No.1. The said employee disclosed his name as Mhatre. PW No.1 has stated that on 07.01.2004, accused no.1 and accused No.2 came to his ofice. PW No.1 has not stated that accused no.2 is the same person who disclosed his name as Mhatre, on 06.01.2004, when inquiry was made about accused No.1 in his ofice. Similarly, PW No.2 had accompanied PW No.1 in the ofice of accused No.1 on 06.01.2004. In evidence he stated that one Mr. Mhatre in the ofice informed that, accused No.1 is not in ofice and subsequently stated that he may not come. PW No.2 was also panch for trap dated 07.01.2004. According to him accused No.2 informed complainant not to worry and that they would demolish structure. PW No.2 did not state that he is the same person who met them in ofice of accused 48 of 64 Cri. Appeal No.320.11.doc No.1 on 06.01.2004. Panchnama dated 06.01.2004 Exh.38 executed by PW No.2 and another panch refer to name of person who informed them about accused No.1 as Mhatre. In trap panchnama dated 07.01.2004 Exh.42 in which PW No.2 acted as panch it is mentioned that, two persons entered ofice of PW No.1 on 07.01.2004. Their names were disclosed to panchas subsequently as Sagar Nevgi and Ganesh Mhatre. Both witnesses had tried to impress as if accused No.2 is the person who visited ofice on 07.01.2004 with accused No.1 and till than unknown to them. The prosecution case, however proceeds with the fact that accused No.2 is the same person who was in ofice of accused No.1. This is evident from the statement of accused No.2 recorded under Section 313 of Cr.P.C. Question No.3 of 313 statement reads as follows: -

"Q.3 :- It has come in the evidence of prosecution that on 6/1/04, complainant met you in BMC ofice and inquired about accused no.1. You said that accused no.1 will come after some time. After some time you told that there was no chance of accused no.1 coming to ofice on that day. What have you to say about it?

Ans :- It is true.

25. PW No.2 is the panch witness. The other panch has not been examined. According to him, on 06.01.2004, 49 of 64 Cri. Appeal No.320.11.doc trap was arranged and he accompanied the complainant to the ofice of accused No.1. However, the accused was not there. Hence, withdrawal panchnama was recorded. Complainant gave the call to accused from public telephone booth. Thereafter, they proceeded towards the police vehicle. Complainant informed PW No.4 that he called accused, who informed that he will come on the next day to the ofice of complainant at about 11.30 am. to 12.00 noon. The version of this witness indicates that call was made by the complainant to accused. However, he did not hear the conversation between the accused and complainant. There is nothing to indicate that he was sure that the person on the other side to whom the call was made by complainant was accused No.1. Thus, it is the version of PW No.1 that he spoke to accused No.1 and he had stated that he would come to his ofice on the next day. It is also pertinent to note that PW No.2 does not state that the complainant had informed PW No.4 that the accused had told him that he would visit the ofice of complainant on the next day for collecting money. This witness then referred to alleged conversation dated 07.01.2004 between the accused No.1 and complainant and accused No.2 and complainant. According to him accused No.1 informed the 50 of 64 Cri. Appeal No.320.11.doc complainant not to worry and that demolition will be carried out within a week and that his work would be done. At that time accused No.1 asked whether Rs.10,000/- is ready, then the complainant had replied in afirmative. The accused No.1 told him to give it. The complainant then took out the money and gave it to accused No.1, who accepted it by right hand by holding fap by left hand and kept amount in the vacuum of the cap in left hand him by folding it. The involvement of accused No.2 has not been believed by the Court and he has been acquitted. This witness has further stated that panch No.2 was asked to take cap from the hand of accused and to open it. The trap amount was found in the cap. He was asked to count it. There were 10 currency notes of Rs.10,000/- denomination. It showed greenish glow when examined under UVL. The cap showed light greenish glow in the inner side of cap. That portion was encircled and their signatures were obtained. Panch No.2 was asked to examine hands of accused No.1. His right hand and fngers showed light greenish glow under UVL. It is astonishing to not that panch No.2 had counted the currency notes to which Anthracene powder was applied and after counting currency notes, it is obvious that his hands were stained 51 of 64 Cri. Appeal No.320.11.doc with Anthracene powder. Thereafter, he had examined hands of accused No.1. The possibility that the Anthracene powder was refected on the hands of accused No.1 due to examination of his hands by panch No.2 cannot be ruled out. Surprisingly the prosecution had chosen not to examine panch No.2 as witness in this case. PW No.2 has further deposed that, both panchas did not wash their hands before commencement of post trap panchnama proceedings. They were not given opportunity by PW No.4 to wash their hands after examination of notes and before examining hands of accused. PW No.2 was not sure about their hands being examined under UVL before examining hands of accused. The other factor which is required to be noted is that he acted as panch in about 10 to 12 cases of ACB. He had informed this fact to PW No.4. Nothing else except the conversation between him and PW No.4 on 06 th January 2004 had occurred when he requested him to act as panch at 10.00 am. He had informed PW No.4, that he had acted as panch previously. He cannot assign any reason as to why the said fact is not mentioned in the said panchnama. However, the evidence of PW No.4 is absolutely contradictory to the version of PW No.2 in this regard. PW No.4 has denied that, he was informed by PW 52 of 64 Cri. Appeal No.320.11.doc No.2 that he has acted as panch in several cases. It appears that no suficient inquiry was made by PW No.4 assuring about the reliability of panch witness. PW No.2 also stated that PW No.4 prepared post trap panchnama and gave it to them for reading and signed the same. He could not demonstrate as to how accused No.1 kept amount in the cap and held it in his left hand by folding it. He showed his inability to demonstrate the said fact. He could not state as to whether without using right hand the accused No.1 could not have folded his cap. Outer side of the cap did not show presence of Anthracene powder when examined under UVL and that only inner part that is vacuum or hollow portion showed presence of Anthracene powder and that they have signed and encircled that portion. It is pertinent to note that the prosecution case is that the amount was accepted by accused No.1 and it was kept in the vacuum of the cap which was folded and held in his hand. This version would indicate that, there has to be the traces of Anthracene powder on the fap or outside the cap. The major lacuna in prosecution case is apparent from his evidence. PW No.2 stated that there is no signature and encircled portion in the vacuum of cap. All these discrepancies creates doubt about the prosecution case.

53 of 64 Cri. Appeal No.320.11.doc On account of infrmities in evidence, the conversation relating to trap dated 07.01.2004 cannot be accepted as gospel truth. It is not the case of recording conversation in device. The panchnama reproduced the conversation. It is doubtful how, word to word conversation was reproduced in panchnama while recording trap panchnama.

26. PW No.4 is the investigating oficer. According to him after it was found that accused was not in the ofice on 06.01.2004. the complainant and PW No.2 got down from the ofice of BMC. Complainant approached public booth and made call to someone. Thus, PW No.4 is not aware as to whom PW No.1 spoke on 06.01.2004 from public booth. His version is hearsay. According to him PW No.1 told him that accused No.1 was not present in the ofice and that he called him. PW No.1 also told him that accused will come to complainant ofice at Opera House on the next day. It is clear that, PW No.1 has not informed PW NO.4 that, accused No.1 had told him that he would visit his ofice on the next day to collect money. This collection of money is the sole testimony of PW No.1. PW No.1 also did not disclose to PW No.4 that accused No.1 would visit his ofice at 11.30 a.m. The visit of accused No.2 was surprise to everyone. He was not in picture in the previous 54 of 64 Cri. Appeal No.320.11.doc transaction. He also stated that panch No.2 counted currency notes kept in the vacuum of cap. The amount was examined under UVL. It showed glowish blue. The portion was encircled by ball pen. He afixed label outside the said circle and signed the same along with signature of panchas. Thereafter, hands and clothes of accused were examined under UVL. His personal search was taken by panch No.1. He has suppressed the fact that Panch No.2 had examined hands of accused No.1 as deposed by PW No.2. He could not give satisfactory answer as to why the encircled portion was not present on the cap. He admitted that label on the cap was afixed by him. The signature of panch witnesses and PW No.4 were not there. This further creates doubt about the authenticity of prosecution case. He admitted that it is duty of Investigation Oficer to see that panch should not be repeated in trap cases as far as possible. He asked both the panchas as to whether they acted as panch witness in earlier cases and they denied. They have not stated that they had acted 12 times earlier. On the contrary they stated that they did not act as panch earlier. The evidence of PW No.2 runs counter to version of PW No.4. He stated that the hands of accused were not examined before they left ACB ofice. There hands were 55 of 64 Cri. Appeal No.320.11.doc examined to show that, Anthracene powder was not present on their hands. He could not assign any reason as to why their hands were not examined before proceeding for trap. He did not mention in the pre-trap panchnama that panchas examined their hands under UVL. He could not assign any reason as to why it was not so recorded. He further stated that, the amount was not in the vacuum of cap but it was between fap and inner portion of the cap. The contents of the panchnama that Anthracene powder was found on the inner side is correct. He admitted that, it is not mentioned in panchnama that trap amount was found on the fap of the cap. In the cases of trap the place from where amount is found is important. It is not specifcally mentioned in panchnama.

27. The evidence of sanctioning authority would indicate that the parameters to show that there was application of mind while granting sanction were lacking. It is not disputed that PW No.3 had authority to grant sanction, however, the fact that there is application of mind while granting sanction is absent. PW No.3 admitted that draft sanction order was handed over to him. Oficer of BMC had received papers for grant of sanction to prosecute accused on 06.07.2004. The letter dated 56 of 64 Cri. Appeal No.320.11.doc 03.07.2004 was addressed to him. It was forwarded to Chief Oficer for inquiry. He received processed papers on 28.07.2004. Chief oficer drafted the fnal sanction order. He received draft sanction order from ACB. Some minor language corrections were made by him and added his name in fnal sanction order. He did not dispute that nothing on the facts of the case was changed. The date and proof of letter mentioned on the frst page and date mentioned on the last page in the sanctioned order is written in ink and that it is not in his hand writing. The fnal sanction order does not show the date he signed it. He did not enter the date in Exh.43, when he signed it. His evidence further discloses that he did not remember which accused demanded bribe. After refreshing memory, he deposed that amount was demanded by accused No.1. He could not say whether accused No.2 had no knowledge till 07.01.2004 about demand of bribe made by accused No.1 from complainant. He did not know why reference of furtherance of common intention is made in connection with item no.1 and 2 relating to accusedNo.2. He cannot say whether there was no common intention between accused No.1 and accused No.2 prior to 07.01.2004. He was aware of pendency of suit in respect to the structure in 57 of 64 Cri. Appeal No.320.11.doc question. He did not know details of structure. He did not know whether unauthorized structure was demolished without demanding bribe. He did not know whether the alleged bribe was made in connection with authorized structure in respect to which suit was pending

28. It is evident that PW No.3 has mechanically issued sanction order. The draft sanction order was converted into sanction. Section 19 of P.C. Act 1988 reads as under: -

"19. Previous sanction necessary for prosecu- tion.--

(1) No court shall take cognizance of an of-

fence punishable under [sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanc- tion [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--

(a) in the case of a person [who is employed, or as the case may be, was at the time of com- mission of the alleged ofence employed] in connection with the afairs of the Union and is not removable from his ofice save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person [who is employed, or as the case may be, was at the time of com- mission of the alleged ofence employed] in connection with the afairs of a State and is not removable from his ofice save by or with the sanction of the State Government, of that Government;

58 of 64 Cri. Appeal No.320.11.doc

[Provided that no request can be made, by a person other than a police oficer or an oficer of an investigation agency or other law en- forcement authority, to the appropriate Gov- ernment or competent authority, as the case may be, for the previous sanction of such Gov- ernment or authority for taking cognizance by the court of any of the ofences specifed in this sub-section, unless-

(i) such person has fled a complaint in a competent court about the alleged ofences for which the public servant is sought to be prosecuted; and

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prose- cution against the public servant for further proceeding;

Provided further that in the case of re-

quest from the person other than a police ofi- cer or an oficer of an investigation agency or other law enforcement authority, the appro- priate Government or competent authority shall not accord sanction to prosecute a pub- lic servant without providing an opportunity of being heard to the concerned public ser- vant:

Provided also that the appropriate Gov- ernment or any competent authority shall, af- ter the receipt of the proposal requiring sanc- tion for prosecution of a public servant under this sub-section, endeavor to convey the deci- sion on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period

59 of 64 Cri. Appeal No.320.11.doc may, for the reasons to be recorded in writ- ing, be extended by a further period of one month:

Provided also that the Central Govern- ment may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary. Explanation.- For the purposes of sub-sec- tion (1), the expression "public servant" in- cludes such person-

(a) who has ceased to hold the oficer during which the ofence is alleged to have been committed; or

(b) who has ceased to hold the ofice dur-

ing which the ofence is alleged to have been committed and is holding an ofice other than the ofice during which the ofence is alleged to have been committed.] (2) Where for any reason whatsoever any doubt arises as to whether the previous sanc- tion as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Govern- ment or authority which would have been competent to remove the public servant from his ofice at the time when the ofence was al- leged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) no fnding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confrmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction re- quired under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

60 of 64 Cri. Appeal No.320.11.doc

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfed that such error, omission or irregularity has resulted in a fail- ure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in rela- tion to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omis- sion or irregularity in, such sanction has occa- sioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.--For the purposes of this sec- tion,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution in- cludes reference to any requirement that the prosecution shall be at the instance of a speci- fed authority or with the sanction of a speci- fed person or any requirement of a similar nature."

No fnding, sentence or order passed by a special judge shall be reversed or altered by a Court in appeal, on the ground of any error, omission or irregularity in the sanction required under sub section (1) of Section 19, unless in the opinion of the appellate or revisional Court, 61 of 64 Cri. Appeal No.320.11.doc failure of justice has in fact been occasioned thereby. Taking into consideration the evidence of PW No.3 and evaluation of evidence of other witnesses which sufers from doubt a fnding that a failure of justice has been occasioned by an improper sanction can undoubtedly be reached. In fact, in the present case sans infrmity in sanction, the conviction has to be set aside considering the evidence as scrutinized above.

29. The sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The order granting sanction must be demonstrative of the fact that there has been proper application of mind.

30. Learned counsel for appellant has adverted to catena of decisions of apex Court and this Court. In Pannalal Rathi (Supra) it was observed that complainant is to be regarded as accomplice. His evidence to be corroborated in material particulars. In P. Satyanarayan Murty V.s Dist. Inspector of Police (supra) it was held that proof of demand of illegal gratifcation is gravamen of the ofence under Section 7 and 13 (1) (d) (i) and (ii) of P.C. Act and in absence thereof, unmistakably the charge would fail. In Ayyasami V.s State of Tamilnadu (supra) it is held 62 of 64 Cri. Appeal No.320.11.doc that conviction cannot be based on probabilities. In the case of Mohd. Iqbal Ahmed V/s State of Andhra Pradesh (supra) it was observed that it is in cumbent upon prosecution to prove that a valid sanction has been granted by authority, after it was satisfed that, case for sanction has been made out constituting ofence. In State of Gujrat Vs. K.P. Shah (supra) it was observed that panch witness had acted as panch in several cases. He tried to suppress the fact police oficer did not speak out the truth about panch witness acting as panch in other cases. The High Court felt that prosecution failed to establish case beyond reasonable doubt. Prosecution case should not be accepted in the absence of convincing independent evidence. In B. Jayraj Vs. State of Andhra Pradesh (supra) it was observed that, presumption under Section 20 of P.C. Act can only be in respect to ofence under Section 7 and not the ofences under Section 13 (1) (d) (i) and (ii) of the P.C. Act. It is only on the proof of acceptance of illegal gratifcation that presumption can be drawn under Section 20 of the Act. In the case of Hira Lal Vs. State of Haryana (supra) it was observed that, person appearing as prosecution witness four or fve times in police cases pertaining to particulars police witness, evidence of such witness does not carry 63 of 64 Cri. Appeal No.320.11.doc value. In State of Karnataka Vs. Ameer Jan (supra) it was held that, application of mind by sanctioning authority is imperative. In T.K. Ramesh Kumar Vs. State, it was held that, the evidence sufered from contradictions, inconsistently and material and material witness was not examined. In the case of state of Punjab Vs. Madhav Mohan lal Verma, it was observed that, mere recovery of tainted money is not suficient to convict accessed when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as a bribe. Burden rests on accused to displace presumption under Section 20 of the Act. Before accused is called upon to explain, how the amount in question was found in his possession, the foundational facts must be established by prosecution.

31. The material on record analysed on the touchstone of legal principles, leave no manner of doubt that the prosecution has failed to prove its case. Conviction cannot be based on probabilities.

32. The prosecution has not discharged its burden to establish the case beyond doubt. There are several circumstances which create doubt. The evidence is not suficient to prove guilt of accused. He is entitled for 64 of 64 Cri. Appeal No.320.11.doc beneft of doubt. In the light of factual aspects of this case and several judicial pronouncing, I am of the considered opinion that the prosecution has not established demand and acceptance of bribe beyond all reasonable doubt, hence, the accused deserves to be acquitted.

ORDER

(i) Criminal appeal No. 320 of 2011 is allowed.

(ii) The Judgment and order dated 25th and 28th February, 2011 passed by the Special Judge in Special Case No.86 of 2004 convicting the appellant for the ofence under Section 7 of Prevention of Corporation Act, 1988 and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act is set aside and the appellant is acquitted of all the charges.

(iii) Bail bond stands cancelled.

(iv) Criminal Appeal is disposed of.

33. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.

(PRAKASH D. NAIK, J.) Dnyaneshwar Ethape (PA)

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