Bombay High Court
Subhash Pandurang Jadhav vs The State Of Maharashtra on 25 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 2006
Author: Prakash D. Naik
Bench: Prakash D. Naik
Ethape 1/32 Appeal No. 690.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 690 OF 2015
Subhash Pandurang Jadhav
Age:34 years, Occu.Service,
R/o.Vaduj, Near Godase Servicing
Center, Taluka Khatav, Dist. Satara. ... Appellant
Vs.
The State Of Maharashtra ... Respondent
......
Mr. Satyavrat Joshi, Advocate for Appellant.
Mr. S. S. Pednekar, A.P.P. for the State-Respondent.
......
CORAM : PRAKASH D. NAIK, J.
JUDGMENT RESERVED ON : 16th OCTOBER, 2020
JUDGMENT PRONOUNCED ON : 25th NOVEMBER,2020
JUDGMENT:-
1. This appeal is preferred under Section 374 of Code of Criminal Procedure (for short "Cr.P.C.) challenging the Judgment and Order dated 06th July 2015 passed by Special Judge, Kolhapur in Special Case No. 4 of 2007, convicting the appellant for the ofence punishable under Section 7 and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988. The appellant is sentenced to sufer rigorous imprisonment for Six months and to pay fne of Rs. 3,000/- ( Three Thousand Only) and rigorous imprisonment for One year and to pay fne of Rs. Digitally signed by
Manish Manish S. Thatte
S. Thatte Date: 2020.11.25
14:28:07 +0530 5,000/- (Five Thousand Only) respectively for the aforesaid
ofences.
Ethape 2/32 Appeal No. 690.15.doc
2. Brief facts of the prosecution case are as follows:-
(i) Complainants grand-father Abdul Rasul Mulani has 4 Anne share in the land Gat No. 396 pertaining to Hajarat Peer Devsthan, at Village Chavare. His grand-father died on 07 th December 1996. On 13th July 1998 his father had applied at Tahsil Ofice, Hatkanangale to mutate his name as legal heir of Abdul Mulani. On 03rd April 1999, Tahsildar Passed order to that efect and copy of the order was marked to Shri. Patil, Talathi of village Chavare. However, Talathi was avoiding to give efect to the order of Tahsildar.
(ii) On 23rd August 2006 the complainant went to Talathi Ofice, Chavare to make inquuiry giving efect of order to revenue record. At that time accused was serving there as Talathi. He was having charge of village Ghunaki and Chavare. The complainant made inquuiry with accused as to whether name of his father has been recorded as per the order of Tahsildar to the record of rights. The accused told him that no entry in the name of his father has been efected. Accused demanded copy of order.
The complainant handed over photo copy of order of Tahsildar. On perusal of order the accused told the complainant that fresh Ethape 3/32 Appeal No. 690.15.doc order of Tahsildar is requuired to be obtained to efect the entry. The complainant wrote application in his handwriting and gave it to accused.
(iii) On accepting the application, in order to complete the work of succession entry in the name of his father. The accused demanded Rs.2,000/-. The complainant requuested the accused to reduce the amount. The accused did not accept the requuest, hence, complainant thought that without payment of Rs.2,000/-, succession entry of his father will not be efected by the accused. He requuested the accused that he would give Rs. 500/- on 29 th August 2006 and remaining amount would be given on 07 th September 2006. After returning home, the complainant felt that he will have to pay amount towards illegal gratifcation to accused.
(iv) On 28th August 2006 the complainant approached A.C.B., Kolhapur and lodged the complaint. On receipt of the complaint, two panchas were called from the ofice of Sales Tax, Kolhapur. Trap amount of Rs. 500/- containing 5 currency Notes of Rs. 100/- were produced by complainant. Anthracin powder was applied to those notes. Those notes were kept in the shirt Ethape 4/32 Appeal No. 690.15.doc pocket of complainant. Pre-trap panchnama was recorded.
(v) The complainant, two Panchas and raiding staf proceeded towards village Ghunaki by Government Jeep. They reached at village Ghunaki at about 09:45 a.m. Complainant and panch No.1-Sharad Joshi entered in the ofice of Talathi at Ghunaki. Accused was present. Panch No.2 stayed with raiding party.
(vi) The complainant inquuired with accused as to whether the work of entering name of his father as successor is completed. Accused asked the complainant whether he has done, what he is supposed to do. The complainant told the accused that he has brought Rs. 500/- as demanded by him. The currency notes of Rs. 500/- were handed over to accused, which were kept by him in his left side pant pocket. The complainant gave signal to raiding party. The raiding party entered the ofice of Talathi. They caught hold of hands of accused and asked him where he has kept the bribe amount. Accused stated that he did not accept the amount. The amount was recovered from the pant pocket of accused. On examining the currency notes under ultra violet lamp bluish shining was noticed. The accused removed the Ethape 5/32 Appeal No. 690.15.doc amount from his pocket and kept it on table. The numbers on currency notes tallied with the numbers mentioned in pre-trap panchnama.
(vii) Accused was arrested. Statement of witnesses were recorded. Sanction for prosecution was granted. Charge sheet was fled.
3. The prosecution examined complainant Javed Shamshuddin Mulla (PW No.-1), Panch Pandurang Ramchandra Mirlekar (PW No.2), Sanctioning Authority Yuvaran Anandrao Poman (PW No.3) and Investigating Oficer Vasant Bapurao Bagal (PW No.4). The prosecution relied on the documentary evidence i.e. Vardi of complainant (Exh.-16), 7/12 extract of land Gat No.396 (Exh.-13), Order of Tehasildar Hatkanangale (Exh.-
14), Application of complainant (Exh.-15), letter issued by Joint Commissioner Sales Tax, Kolhapur to ACB, Kolhapur (Exh.-12), Pre-trap Panchnama (Exh.-22), Post-trap panchnama (Exh.-23), Arrest Panchnama (Exh.-24) Destruction of articles panchnama (Exh.-25), Order of Tahsildar Hatkanangale (Exh.-29), Sanction for prosecution (Exh.-28) and order of Circle Oficer (Exh.-40).
Ethape 6/32 Appeal No. 690.15.doc
4. Accused did not examine any defence witness. He submitted written statement along with the statement under Section 313 of Cr.P.C.
5. Learned Advocate for the applicant submitted as follows:-
(i) The applicant has been falsely implicated in this case. The prosecution has not proved the charges beyond reasonable doubt.
(ii) There was no demand verifcation. (iii) Panch No.1 was not examined hence, there was no
corroboration to the alleged demand at the time of trap.
(iv) The appellant was holding additional charge as Talathi of village Chavare. The work was pertaining to village Chavare.
The application was made to Tahsildar and not to Talathi. No work was pending with appellant.
(v) The discrepancies in the order of Tahsildar and 7/12 extract could be corrected by Tahsildar.
(vi) Father of the complainant is not examined. The work Ethape 7/32 Appeal No. 690.15.doc was relating to mutation of his name. (vii) The complainant had admitted in cross-examination
that in the 7/12 extract in name of Abdul Rasal Mulani area of land 1 Anne 4 pai is mentioned and in the order it was mentioned as 4 Anne.
(viii) PW No.2 admitted that there was no documentary evidence to show that the work was pending with Talathi.
(ix) The evidence of complainant is no better than that of an accomplice. There was no corroboration by independent witness. Panch No.1 who was accompanying the complainant has not been examined. Panch No.2 was not present when the complainant met the accused.
(x) Panch No.2 admitted that there was no scufe between the complainant and accused. He also admitted that news regarding arrest of accused was published in newspaper.
(xi) On two previous occasions the trap did not succeed and hence, it can be safely inferred that the accused never wanted to demand or accept money.
Ethape 8/32 Appeal No. 690.15.doc (xii) The defence of the accused was that the complainant
tried to forcibly put the notes in his pant pocket. Since the accused resisted the same there was scufe. The complainant had suppressed the fact of scufe between him and accused.
(xiii) Presumption under Section 20 of Prevention of Corruption Act is rebuttable and the version of accused has to be tested on the touchstone of preponderance of probability. In the present case, accused has ofered an explanation in his written statement under Section 313 of Cr.P.C. and the foundation thereof has been raised in the cross-examination of PW No.2 and PW No.4.
(xiv) PW No.4 has admitted in evidence that withdrawal panchnama was not drawn on 27th August 2006 and 28th August 2006. He had suppressed these vital facts.
(xv) The news regarding appellant being trapped was published in Sakal newspaper and there was mention regarding scufe in his written statement under Section 313 of Cr.P.C. (xvi) PW No.3 is not competent to accord sanction. The sanction is invalid. The witness admitted in cross-examination Ethape 9/32 Appeal No. 690.15.doc that he has not specifcally mentioned in sanction order that he studied the First Information Report, panchnama and other related documents. He has not seen order of Tahsildar, 7/12 extract in detail. The sanction has been granted without application of mind.
6. In support of submissions, learned Advocate for the appellant had placed reliance on several precedents. Some of them were as follows:-
1. Krishan Chander Vs. State of Delhi 2016 CRI. L.J. 1079
2. Panalal Damodar Rathi Vs. State of Maharashtra 1979 AIR (SC) 1191.
3. Meena W/o Balwant Hemke Vs. State of Maharashtra AIR 2000 (SC) 3377.
4. Sharad Sabaji Tavhare Vs. State of Maharashtra 2019 ALL. M.R. (Cri) 325 .
7. Learned APP submitted that there is no reason to interfere in the Judgment of conviction passed by trial Court. There is suficient evidence on record to establish the charge against the accused. Non examination of the panch witness is not Ethape 10/32 Appeal No. 690.15.doc fatal to the prosecution case. The evidence on record is suficient to convict the accused. The panch No.2 has corroborated the prosecution case. The accused demanded the bribe of Rs. 2,000/-. The complainant handed over Rs. 500/- to the accused on the date of trap, which was accepted by him. The demand of bribe amount is spelt out in the evidence of complainant. PW No.2 and PW No.4 were following the complainant and accused. The evidence adduced by the prosecution, proved demand and acceptance of bribe amount. The tainted notes were recovered from the accused. There is no plausible explanation from the accused about fnding of tainted currency notes with him. The presumption under Section 20 can be invoked against the accused. The said presumption has not been rebutted in any manner, conviction of the accused is requuired to be confrmed.
8. Learned APP relied upon the decisions in the case of CM Sharma Vs. State of Andhra Pradesh AIR 2011 608, and State of Maharashtra through CBI Vs. Mahesh G. Jain delivered by the Supreme Court in Criminal Appeal No. 2345 of 2009.
9. The complaint was lodged by PW No.1. According to him his grand-father had 4 Anne share in land Gat No.396 at Ethape 11/32 Appeal No. 690.15.doc village Chavare. His grand-father died on 07 th December 1996. On 03rd July 1998 his father applied at Tahsil Ofice to mutate his name as legal heir of Abdul Rasul Mulani. Tahsildar passed the order on 03rd April 1999 regarding recording of name of his father as legal heir. On 23 rd August 2006 the complainant went to Tahsil Ofice, Chavare to make inquuiry regarding giving efect to the order passed by Tahsildar to Revenue Record. The accused was Talathi. He was holding charge of village Ghunaki and Chavre. The complainant made inquuiry with accused about recording name of his father as per order of Tahsildar in the record of rights. The accused told him that no entry in the name of his father has been efected. The complainant handed over photocopy of the order. The accused told him that fresh order of Tahsildar is requuired to be obtained to efect the entry. The complainant submitted an application in his handwriting to accused alongwith copy of 7/12 extract of the property. The accused demanded Rs.2,000/-. The complainant felt that without payment of Rs. 2,000/- the succession entry of his father will not be efected by accused. He told the accused that he would pay Rs.500/- on 29th August 2006 and the balance amount on 07 th September 2006. The complainant felt that it would not proper to Ethape 12/32 Appeal No. 690.15.doc give bribe to accused. On 28th August 2006 he approached ACB, Kolhapur to lodge complaint against the accused. Complaint was lodged. Panch witnesses were called. It was decided to lay trap. Complainant, panchas and staf were instructed to remain present on 29th August 2006. All of them visited ACB ofice on 29th August 2006. complainant produced Rs. 500/-i.e. fve notes of Rs.100/- Anthracin powder was applied. All of them proceeded to village Ghunki. The complainant and panch witness Sharad Joshi entered Talathi Ofice. Accused was sitting in the ofice. Complainant made inquuiry about entry of his father as successor. The accused asked whether he has done what he was told about. The complainant stated that he has brought Rs.500/-. The accused demanded the amount. The amount was accepted. Signal was given to raiding party. The accused was apprehended. The accused stated that he did not take the amount. The tainted currency note were recovered from the accused.
10. From the evidence of this witnesses. It is apparent that initially it is apparent that the order was passed by Tahsildar on 03rd April 1999. He approached Talathi Ofice on 23 rd August 2006. He renewed his application on 23 rd August 2006. He was Ethape 13/32 Appeal No. 690.15.doc accompanied by panch witness Sharad Joshi. There was no verifcation of demand by ACB. The accused was holding two charges. Complainants father had applied at Tahsil Ofice to mutate his name on 03rd April 1998. In the cross-examination this witness has stated that he did not make complaint against the predecessor of accused regarding the delay in work. He never made complaint to visiting Circle Oficer. He did not see the application fled by his father. Since 1998, till he visited the accused, he did not make complaint in respect of his work. Village Ghunaki is at the distance of 10 km. and village Chavare is at the distance at 7 km. from his village Juna Pargaon. His grand-father had 1 Anna 4 pai share in land Gat No.396. In 1999 as per record resolution entry of 4 Anna was recorded in the name of his grand-father by mistake. On that day he came to know about the said mistake. Thus, from the evidence of this witness it is clear that there was apparently mistake pertaining to share and it was not rectifed since long and the complainant was not knowing about it. The correction in respect to the entry were to be done by Tahsildar. The complainant admitted that the application was submitted to Tahsildar for mutating land in the name of his father. No application was submitted in the name of Ethape 14/32 Appeal No. 690.15.doc Talathi for mutating land in the name of his father. Application Exh.-15 was submitted in the name of Tahsildar for rectifcation of order passed by Tahsildar dated 03rd April 1999. The signature of his father was not obtained, on that application and he signed the said application. 7/12 extract in the name of Abdul Rasul Mulani mentions area as 1 Anna 4 Pai. However, in the order it was mentioned as 4 Anna. From these admissions it can be seen that there was discrepancy in the order of Tahsildar. Thus appellant was not concerned with the work of the complainant.
11. The evidence of PW No.1 further discloses that on 27th August 2006 he made phone call to accused and the accused was busy in executing the panchnamas of natural calamities. On that day, he had been to ofice of ACB and he went to Ghunaki with oficer of ACB and Panchas. They reached there at about 03.00 pm. They came to know that accused had been for execution of panchnama of natural calamities. Hence, all came back on that day. He further stated on 28 th August 2006 they again visited Ghunaki at the ofice of accused. The ofice at Ghunaki was closed on that day and it was locked on account of flood. The accused had proceeded for inspection of felds. The Ethape 15/32 Appeal No. 690.15.doc accused told that he is unable to come and he will not come. On that day also they came back. No panchnama was executed either in the ACB or at Ghunaki. Panchas were also present on that day. On the next day he went to the ofice of ACB. These facts were suppressed by the complainant in his examination-in- chief. As per his version in examination-in-chief he had agreed to pay the frst installment of bribe amount on 29 th August 2006 and the balance amount on 07th September 2006. The fact that there was failed trap on 27th August and 28th August 2006 falsifes the version of complainant. His version is doubtful and cannot be accepted as gospel truth. It is also requuired to be noted that there is no panchnama in respect to unsuccessful attempt dated 27th August 2006 and 28th August 2006. According to complainant, panch witness and Mr. Wakade and Mr. Bagal were part of raid dated 27th August 2006 and 28th August 2006. Mr. Wakade had accompanied PW No.1 during trap on the aforesaid dates. Although it is the case of the complainant that the panch witnesses had accompanied him, he has not given names of panchas who were part of raid attempt dated 27 th August 2006 and 28th August 2006.
Ethape 16/32 Appeal No. 690.15.doc
12. PW No.2 Pandurang Mirlekar is panch No.2. He visited ACB ofice on 28th August 2006, alongwith Mr. Sharad Joshi. They were directed to act as panchas. They were called on next day. Both panchas visited ofice of ACB on 29 th August 2006. Trap was arranged. Complainant handed over Rs.500/- (Five notes of Rs.100/-). All formalities for trap were completed. Instructions were given to complainant and panchas. Complainant and panch No.1 Mr. Sharad Joshi were instructed to visit ofice of Talathi. This witness remained with raiding party. Complainant and panch No.1 proceeded to ofice of Talathi. After some time complainant came out and gave signal. Raiding party rushed to ofice of Talalthi. Currency notes were recovered from accused. Thus, this witness was not privy to conversation of demand and acceptance between the complainant and accused. He was not present at the place of demand and acceptance of the bribe amount. The evidence of this witness do not corroborate the version of complainant with regard to demand and acceptance of amount. Panch No.1 who was with the complainant and in whose presence the demand and acceptance of bribe amount had occurred was not examined by the prosecution. He further stated that, matter was of village Ethape 17/32 Appeal No. 690.15.doc Chavare and trap was conducted as Ghunaki. He had not seen 7/12 extract and the order of Tahsildar. Police did not show any papers to him. The application submitted to Talathi has not been seized. There was no documentary evidence on record to show that the work was pending with Talathi. The ACB did not make inquuiry from the complainant about revenue of disputed land. On 28th August 2006, he accompanied the staf of ACB to Ghunaki. On that day, none of the panchnama was executed. He came to know that accused had been to execute panchnama of flood afected persons. On 27th August 2006 also he had been to village Ghunaki. He came to know that accused had been to execute panchnama of flood afected persons. Mr. Wakade had accompanied them. There was scufe between complainant and accused. On 29th August 2006 the news of trap dated 28 th August 2006 was published in newspaper dated 29th August 2006. The ofice of accused had a grill and everything was visible from the ofice. Light was available in the ofice of accused. Thus, PW No.2 also referred to the failed trap dated 27 th August 2006 and 28th August 2006 at Ghunaki. He had not stated this fact in his examination-in-chief. There are no documents viz. Panchnama in respect to the attempt dated 27 th August 2006 and 28 th August Ethape 18/32 Appeal No. 690.15.doc 2006. He has referred to scufe between accused and the complainant. This supports the defense of the accused that the amount was planted by thrusting bribe amount by the complainant.
13. Complaint was lodged on 28 th August 2006. In the complaint it was alleged that the complainant had visited ofice of accused on 23rd August 2006. The accused demanded bribe on the same day. The complainant stated to accused that he would bring the amount of Rs.500/- on 29 th August 2006. The complaint was lodged on aforesaid date. PW No.1 in cross-examination has referred to attempt of trap on 27th August 2006 and 28th August 2006. If the complaint was lodged on 28 th August 2006, how trap was conducted on 27th August 2006. The entire case is suspicious. PW No.2 is party to pre-trap panchnama dated 29 th August 2006. The said panchnama do not refer to events of 27 th August 2006 and 28th August 2006. Trap panchanama dated 29 th August 2006 is also silent in that regard. There was no verifcation of demand.
14. PW No.4 Mr. Vasantrao Bagal has narrated the events leading to trap. He has reiterated version of PW No.1 and PW Ethape 19/32 Appeal No. 690.15.doc No.2 with regard to complaint, pre-trap and post trap panchnama. His evidence is silent in respect to raid conducted on 27th August 2006 and 28th August 2006. He conducted investigation. He obtained sanction to prosecute the accused from the sanctioning authority. His cross-examination discloses that demand was not verifed. Taperecorder was not used at the time of trap. Complainant did not submit any application to the accused for recording name of his father. The copy of application was submitted to him along with complaint to ACB. On the application submitted by complainant there is no endorsement of the ofice of accused that it was received by accused and it was given by the complainant. He did not make inquuiry in respect to area of feld which has been mentioned as 4 Anne and 1 Anne 4 pai. The application of the complainant was lying in the ofice of accused since 1999. In the report submitted by Circle Oficer there is no reference of order of Tehasildar, Talathi has right to recover the land revenue and arrears of land revenue. Log book of the used vehicle has not been produced on record. He is not aware that since two days prior to incident, the accused was busy in executing panchnama of flood afected felds. On 28 th August 2006 he was in ofice. It did not happen that on 27 th Ethape 20/32 Appeal No. 690.15.doc August 2006 and 28th August 2006 he had been to the ofice of accused for trap. There was grill to front side wall of the accused. It did not happen that on the day there was scufe between complainant and accused and during that scufe the complainant was trying to thrust trap money in the pocket of accused. Accused was not sent to the hospital for medical examination. The work was of the father of the complainant. He did not make any investigation from the complainant about the payment of land revenue. It is not true that the trap was arranged on 27th August 2006 and 28th August 2006. Mr. Wakade accompanied them since beginning till completion of entire trap.
15. PW No.3 Mr. Uvran is Sanctioning Authority. According to him he was working as Sub Divisional Oficer at Ichalkarnji. In 2007 Sub Divisional Oficer was the appointing and removing authority of Talathi. He received papers through ACB to accord sanction for prosecution of accused. He also received draft sanction. He studied those papers and found suficient evidence to accord sanction to the prosecution. In the cross-examination, he stated that during his tenure at Ethape 21/32 Appeal No. 690.15.doc Ichalkarangi accused was not appointed as Talathi. He had not seen the appointment order of the accused. He is unable to state that the appointment of accused as Talathi was by staf Selection Committee of the Government. He did not have idea as to who was the chairman of that Committee. The candidates selected by the committee would come to his ofice and than posted according to availability of post. He has not added or deleted the name of candidate from the select list of the Committee. The Committee used to select candidates after conducting examination and interview. He has not specifcally mentioned that he have studied panchnama, FIR and other relevant papers. He did not make any entry of papers which were received by him. Along with complaint, the complainant had produced ofice order of Tahsildar dated 03rd April 1999 and 7/12 extract dated 23rd April 2006. He did not see application and 7x12 extract in detail about the share of deceased in those documents. He has no knowledge about Exh.-15 and for what purpose the complainant had submitted it to Tehasildar. He did not receive any application of complainant pending with accused. On perusal of the documents he had mentioned in Exh-28 that for taking entries in 7/12 extract, bribe was demanded.
Ethape 22/32 Appeal No. 690.15.doc
16. The defense of the appellant reflected in his written explaination is that, work of complainant was not pending with him. On perusal of documents tendered by complainant, it was noticed that in the order of Tahsildar it was stated that share of complainants grant father was 4 Anne. Whereas in 7/12 extract it was shown as 1 Anne 4 Pai. Hence, due to variation it was not possible to make entry. The order of Tahsildar was requuired to be corrected. The complainant was informed about it. He was advised to prefer application before Tahsildar. The complainant was also warned that he should deposit land revenue. The complainant did not submit any application to him for entry of name. Unless requuisite corrections were made in the resolution of Tahsildar, he had no authority to accept any application or mutation of entry. This was brought to notice of complainant and since he was told to pay arrears of land revenue, false complaint was lodged in connivance with ACB oficers. He was busy in recording panchanama of flood afected persons on 27 th August 2006 and 28th August 2006. He received phone calls from complainant. On 29th August 2006, complainant and others approached him and there was scufe. Complainant tried to Ethape 23/32 Appeal No. 690.15.doc thrust something in his pocket and assaulted him and lodged false complaint. News report was published in that regard on 30th August 2006. the accused did not demand money nor accepted it from complainant. He was appointed by member Secretary, Government Selection Commission and the SDO has only given posting. PW No.3 had no authority to grant Sanction for prosecution.
17. In the case of Krishan Chander Vs. State of Delhi (supra) it was observed that, the demand of bribe money is sine quua non to convict the accused for the ofence punishable under Section 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act. The proof of demand of illegal gratifcation is the gravamen of the ofence under Section 7 and 13 (1) (d) of the Prevention of Corruption Act. In the case of Panalal Damodar Rathi Vs. State of Maharashtra (supra) it was observed that, the complainant in bribery case is in no better position than accomplice or abettor - his testimony cannot be relied without material corroboration. In the case of Mina W/o Balwant Hemke Vs. State of Maharashtra (supra) the Supreme Court has observed that, non-examination of important witnesses who were Ethape 24/32 Appeal No. 690.15.doc part of the trap belies the prosecution story because corroboration of the events that followed the alleged demand and acceptance is very much wanting in the case. In the case of Sharad Sabaji Tavhare Vs. State of Maharashtra (supra) this Court had observed that, demand of illegal gratifcation is sine quua non for constituting an ofence under the Prevention of Corruption Act. Mere recovery of tainted money is not suficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not suficient to fasten guilt, in absence of any evidence with regard to demand and acceptance of the amount as illegal gratifcation. The burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act. While invoking provision of Section 20 of the Act, the Court is requuired to consider the explanation ofered by the accused, if any, only on the touchstone of preponderance of probability. In the case of C.M. Sharma Vs. State of Andhra Pradesh (supra) the Supreme Court has observed that the corroboration of the evidence of witness can be found from the other material on record. The evidence of the Ethape 25/32 Appeal No. 690.15.doc complainant was corroborated by shadow witness. In the case of State of Maharashtra through C.B.I. Vs. Mahesh G. Jain (supra) it was observed that, When there is a order of Sanction by competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused.
18. The law on the issue is well settled that demand of illegal gratifcation is sine quua non for constituting an ofence under the Act 1988 . Mere receipt of the amount by the accused is not suficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratifcation. While invoking the provisions of section 20 of the Act, the Court is requuired to consider the explanation ofered by the accused, if any, only on the touchstone of preponderance of probability. For arriving at the conclusion as to whether all the ingredients of an ofence, viz. demand, acceptance and recovery of the amount of illegal gratifcation have been satisfed or not, the Court must take into consideration the facts and circumstances brought on record in their entirety. The presumptive evidence, as laid down in section 20 of the Act, Ethape 26/32 Appeal No. 690.15.doc must also be taken into consideration. However, before the accused is called upon to explain as to how the amount in quuestion was found in his possession, the foundational facts must be established by the prosecution.
19. It is a golden principle of criminal law that the burden of proof requuired to be discharged by the prosecution is one of proof beyond reasonable doubt. In Sujit Biswas V. State of Assam (2014) 1 SCC (Cri.) 677 it is held that suspicion, however grave it may be cannot take the place of proof, and there is a large diference between something that 'may be'y proved, and something that 'will be proved'y.
20. In the instant case, the prosecution has failed to discharge its burden to establish that the applicant demanded and accepted illegal gratifcation beyond reasonable doubt.
21. The prosecution case sufers from serious discrepancies. Complainant (PW No.1) is not reliable witness. The evidence of PW No.1, PW No.2 and PW No.4 is contradictory to each other. The admissions in cross-examination of witnesses creates doubt about demand of bribe and its acceptance. The Ethape 27/32 Appeal No. 690.15.doc prosecution case therefore fails to prove guilt.
22. The grounds on which the conviction of appellant is requuired to be set aside can be sumarised as follows:
(i) Grand-father of PW No.1 had expired on 7 th December 1996. His father had applied for mutation of his name on 13th July 1998. Tahsildar passed order on 3 rd April 1999. The complainant approached accused for the frst time on 23rd August 2006. Complaint of demand of bribe was lodged on 28th August 2006. He did not make complaint of inaction against predecessor of accused to visiting Circle Oficer.
(ii) The complainant allegedly submitted application Exh.15 on 23rd August 2006. The said application was addressed to Tahsildar. There was no date on the application. There is no endorsement of ofice of accused indicating that the application was received by accused or given by complainant. The application was written by complainant, although entry was to be made in the name of his father.
Ethape 28/32 Appeal No. 690.15.doc
(iii) There was variation in respect to share of complainants grand father in order of Tahsildar and 7/12 extract. It was not rectifed since long. PW No.1 stated that he was not knowing about it. The correction of entry were to be done by Tahsildar and not by accused. No application was submitted in the name of Talathi for mutating land in the name of complainants father. The appellant was not concerned with the work of complainant.
(iv) There was no verifcation of demand.
(v) PW No.1 has suppressed the fact that there were attempts to lay trap on 27th August 2006 and 28th August 2006 in examination in chief. This fact is also not reflected in complaint dated 28th August 2006.
(vi) The failed attempts dated 27th August 2006 and 28th August 2006 falsify, the version of complainant that he met accused on 23rd August 2006 and he had agreed to pay bribe amount on 29th August 2006. The contents of complaint dated 28th August 2006, version of PW No.1 Ethape 29/32 Appeal No. 690.15.doc in evidence is doubtful. The entire case is suspicious.
(vii) PW No.4 is not aware about failed raid dated 27 th August 2006 and 28th August 2006.
(viii) Panch No.1 who was accompanying the appellant at the time of raid dated 29th August 2006 has not been examined. There is no corroboration to version of PW No.1.
(ix) PW No.2 (panch) has also referred failed raid dated 27 th August 2006 and 28th August 2006. He referred to scufe between complainant and accused. He also referred to news of trap dated 28th August 2006 being published in newspaper.
(x) The admissions in cross-examination of PW No.1, PW No.2 and PW No.4 supports the defense of appellant.
(xi) There were no panchnama in respect to attempts dated 27th August 2006 and 28th August 2006.
(xii) In the event complaint was lodged on 28th August 2006, how there could be raid on 27th August 2006.
Ethape 30/32 Appeal No. 690.15.doc
(xiii) PW No.4 has categorically stated that there was no raid on 27th August 2006 and 28th August 2006.
(xiv) Tape recorder was not used during trap.
(xv) PW No.4 stated that application was not submitted to applicant by complainant for recording name of his father.
(xvi) PW No.4 did not produce logbook. He is not aware that accused was busy in preparing panchnama of flood afected persons. He was in ofice on 28 th August 2006.
He has denied scufe between accused and
complainant.
(xvii) PW No.3 was working as SDO. His evidence is not clear about his authority to accord sanction. He did not see the appointment order of accused. He was unable to state that the appointment of accused as Talathi was by staf selection Committee of Government. However, subsequuently he stated that, candidates selected by committee would come to his ofice and than posted Ethape 31/32 Appeal No. 690.15.doc according to availability of post. The committee used to select candidates after conducting examination and interview. PW No.3 has stated that recruitment of the accused was through regional staf selection board Pune and the letter of his appointment was issued with signature of member secretary of board. The documents of appointment were not called from the board.
(xviii) The defence of appellant existing through cross-
examination of witnesses and the written explanation tendered by him is plausible. The foundation to invoke presumption has not been established. In fact it has been rebutted by accused.
23. For the reasons stated above, the analysis of evidence, referred to above, I fnd that the prosecution has failed to prove charges against the appellant beyond reasonable doubt. The accused deserves to be acquuitted.
Ethape 32/32 Appeal No. 690.15.doc
ORDER
(i) Criminal Appeal No. 690 of 2015 is allowed.
(ii) The Judgment and Order dated 06 th July 2007 passed
by Special Judge, Kolhapur in Special Case No. 4 of 2007 convicting the appellant for the ofence under Section 7 of Prevention of Corruption Act and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act is set aside and the appellant is acquuitted of all the charges.
(iii) Bail bond stands cancelled. (iv) Criminal Appeal stand disposed of.
24. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)