Bombay High Court
Sankalp Amonkar vs State Of Goa on 15 October, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-GOA:2119
2025:BHC-GOA:2119
Suzana
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.59 of 2015
WITH
CRIMINAL APPEAL NO. 60 of 2015
AND
CRIMINAL APPEAL NO.61 OF 2015
Shri. Rajesh Naik
Son of Kashiram Naik, aged 46 years
R/o H.No.45, Palye Bastora,
Bardez Goa ... Appellant
Versus
State
Through Police Inspector
CID/CB
Dona Paula Goa ... Respondent.
Mr Neelesh Takkekar, Advocate with Ms Kalpa Govekar,
Advocate for the Appellant.
Mr Pravin N. Faldessai, Additional Public Prosecutor for
Respondent.
CORAM : BHARATI DANGRE, J.
Reserved on : 25th JULY, 2025
Pronounced on : 15th OCTOBER 2025.
JUDGMENT:
1. The three Appeals are filed by the Appellant, Rajesh Naik, being aggrieved by the impugned Judgment and Order dated 29.10.2015 and 30.10.2015 passed by the Special Judge, North Goa, in Special Case Page 1 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: No.1/2001 (Old)-Special Case No.10/2014, Special Case No.1/2005 (old)-Special Case No.11/2014 and Special Case No.2/2005(old)-Special Case No.12/2014.
2. Heard learned Counsel Mr. Neelesh Takkekar for the Appellant in all three Appeals, which are taken up for hearing upon paper-book being prepared and received. Mr Pravin Faldessai, the learned Public Prosecutor, represented the Respondent State in all the Appeals.
3. It is the case of the Prosecution that between July 1997 and July 1999, Mr Rajesh Naik, working as Upper Division Clerk in Excise Station, Mapusa, a public servant, was entrusted the duty of renewal of licences and was responsible to check the records and to process the licences for renewal. It is alleged that he approached one Jude Lawrence Vaz, (PW1), between July 1997 and July 1998 and volunteered to renew his licence on payment of money towards licence fee. According to the Prosecution, he entrusted cash amount of Rs.6500/- for this purpose in the year 1997 and again in the year 1998 for renewal of licence for the period from 1997-1998 and 1998-1999.
It is the case of the Prosecution that the accused Naik accepted the money from the complainant and intentionally prepared false licence certificates and obtained signature of one Suresh Parab (PW6), working as Upper Division Clerk, by misrepresentation and handed over the forged licence to the complainant.
Page 2 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: As per the Prosecution, Naik also approached other licence holders and collected an amount of Rs.45,995/- from them under the pretext of renewal of their licences, and he misappropriated the amount by abusing his official position and is also accused of preparing false statements of defaulters/licence holders wherein he deliberately omitted the names of the complainant and others from whom he received money, so as to cover up his misdeeds.
Upon registration of the offences and conduct of investigations by CID, CB, Dona Paula, Panaji, a charge sheet was filed on 07.03.2001 against Shri Rajesh Naik for the offences punishable under Section 13(1)(c)(d) read with Section 13(2) of the of the Prevention of Corruption Act, 1988 and Sections 409, 420, 465, 468 and 471 of the Indian Penal Code. After taking cognizance of the charge sheet and on issuance of notices to the accused in Special Case No.1/2001, on 31.05.2004, it was noted that the accused has been charge-sheeted for having committed offences for the period from July 1997 to July 1999, i.e. over a period of two years and the offences allegedly committed, were clubbed. Recording that the accused has been charged for two distinct offences which are allegedly committed by him in the year 1997 and also in the year 1998 and since the charge sheet accused him of accepting money from 10 different licence holders under the pretext of renewal of their licence and failure to deposit such amount including that of the complainant in the Government Treasury, and since he was accused of Page 3 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: misappropriation of the amount and fabrication of the records to that effect, two separate charge sheets were directed to be filed.
The Order dated 31.05.2004 reasoned thus:
"7. Likewise the accused is also charged for having accepted money from 10 different licence holders which also constitute distinct and separate offence. A joint trial is clearly prohibited in respect of the distinct and separate offences alleged to have been committed by the accused by virtue of section 218 of Criminal Procedure Code. This being the position, it is not possible to order framing of the charge against the accused by clubbing all the offences which are distinct and separate offences. It is therefore, necessary to separate the charge against the accused for each distinct and separate offence.
8. The prosecution is therefore directed to take appropriate steps to separate the charge against the accused before further orders are passed in this matter."
4. As a result, of the above order, the Prosecution filed two separate charge sheets bifurcating the offences against the accused, the first charge sheet was filed on 16.03.2005 bearing No.24/2005 in CR No.4/1999 being registered as Special Case No.1/2005(Old). The second charge sheet was also filed on the same date, bearing No.25/2005, being registered as Special Case No.2/2005 (Old).
The FIR No.4/1999, i.e. original FIR which resulted into filing of charge sheet No.1/2001, was the basis of Special Case No.1/2001(Old) and the charge sheet filed accused Shri Naik of approaching the complainant, a licence-holder on two occasions in July 1997 and July 1998 and volunteering to renew his licence if the money towards licence Page 4 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: fee is given to him, which was followed by entrustment of Rs.6500/- on two occasions to him. He faced an accusation of preparing false licence certificate by misrepresentation for the composite period and hence was sought to be tried for the composite period.
5. The Appellant therefore faced three trials, i.e. Special Case No.1/2001, Special Case No.2/2005 and Special Case No.1/2005 resulting out of three different charge sheets, and in the first case, i.e. Special Case No.1/2001, he faced accusations based on the charge sheet for the entire period, whereas in Special Case No.1/2005, (Chargesheet No.24/2005), the period involved is from 01.04.1997 to 31.03.1998 where he is alleged to have obtained signature of Suresh Parab (PW6) by misrepresentation. In Special Case No.2/2005 (Chargesheet No.25/2005), the period of his misdeeds is from 01.04.1998 to 31.03.1999, and is alleged to have forged signatures of Jaya Naik (PW5).
6. On 17.03.2016, the Special Judge, Panaji, passed the following order:
"11. The material on record prima facie indicates that the accused had approached the complainant and several other licence holders and had collected money from them on the pretext of renewing of licence. The material on record prima facie indicates that the accused had not credited this amount to the Government Treasury, but on the contrary had issued forged licences and had also prepared a list of defaulters wherein names of these persons were not figuring in the list of defaulter.Page 5 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: Thus there is prima facie material on record to prove that the accused has committed offence punishable under section 13(1)(c)(d)2 of Prevention of Corruption Act and under section 409, 420, 465, 468 and 471 of Indian Penal Code. Hence charge is ordered to be frame against the accused in Special Case No.1/2005 for committing offence under section 13(1)(c)(d)2 of Prevention of Corruption Act for cheating Jude Lawrence Vaz and also for committing offences punishable under section 409, 420, 465, 468 and 471 of Indian Penal Code during the period from 1.4.1997 to 31.3.1998. Charge shall also be framed against the accused in Special Case No.2/2005 for committing offence under section 13(1)(c)(d)2 of Prevention of Corruption Act for cheating Jude Lawrence Vaz during the period from 1.4.1998 to 31.3.1999 and thereby committing offence punishable under section 420 and also under section 409, 420, 465, 468 and 471 of Indian Penal Code."
7. In Special Case No.1/2005, the accused Naik faced the following charge:
"That you when working as UDC. in the Excise Station, Mapusa, approached the complainant Shri Jude Lawrence Vaz who is a license holder in respect of a wholesale/retail wine shop in house No.254/2 situated at Taricho Galu, Colvale, Bardez-Goa and informed him that his (complainant's) license had expired and further volunteered to renew the same if the money towards the license fees was given to you. Based on this representation, the complainant Shri Jude Vaz entrusted to you cash of Rs.6,500/- for renewal of liquor license for the period from 1-4- 1997 to 31-3-1998. However, after accepting the money, you misappropriated the said amount for your personal gain and intentionally prepared false license certificates by obtaining the signatures of Shri Suresh Y. Parab by misrepresentation of facts and handed the same to the complainant in Form No.25-A, Form No.24 and Form No.24. You have also prepared false statement of defaulters of license holders by omitting the name of the complainant. You, being a public servant, by corrupt and illegal means, abused your position as such and obtained pecuniary advantage and dishonestly misappropriated the said moneys for your own use which was entrusted by the complainant and others to you as a public servant and thereby you have committed offence punishable under section 13(1)(c)(d)2 of the Prevention of Corruption Act, 1988 and within my cognizance."Page 6 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: He also faced a charge under Section 409, by alleging that while working as Upper Division Clerk at Excise Station Mapusa and being entrusted in such capacity with cash of Rs.6500/- paid by complainant, he committed criminal breach of trust in respect of the said property. Further, a charge was also framed under Section 420 of IPC for cheating Jude Lawrence Vas by dishonestly inducing him to deliver cash of Rs.6500/-. Further, he also faced accusation of preparing forged document in form of false licence certificate by obtaining signature of Suresh Parab and Jaya Naik for different periods with an intent to cause damage or cause the complainant to part with his money, and since he was alleged to have forged the licence certificate, he was also charged under Section 460 and 471 of IPC.
In support of the charges levelled to the aforesaid effect, the Prosecution examined 29 witnesses which included the complainant, Jude Vaz, along with Excise Inspector Narayan Nerurkar (PW4), acting Excise Inspector Jaya Naik (PW5), acting Excise Inspector Suresh Parab (PW6) and Excise Inspector, Shaikh Adam (PW7). Another Excise Inspector, Caetano Fernandes is examined as PW-14, whereas PW15 is the Superintendent of Excise, Shamsunder Parab.
PW9 to PW12 and PW16 to PW19 and PW25 are the various persons who were examined in support of the accusation, that Naik collected the Page 7 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: money from these persons under the pretext of payment of licence fee. PW21, PW22, PW26, PW27, PW28 and PW29 were examined in capacity as Investigating Officers.
8. Upon examination of the aforesaid witnesses and confronting the accused with the evidence brought on record by Prosecution, his Statement under Section 313 of Code of Criminal Procedure was recorded, where he categorically stated that he was falsely implicated and denied the accusations, the trial Judge acquitted him of the offences under Sections 409, 420, 465, 468, 471 of the Indian Penal Code but a finding of guilt was recorded for committing an offence under Section 13(1)(d) of Prevention of Corruption Act, 1988 and under Sections 409 and 420 of IPC and he is sentenced to suffer simple imprisonment for a period of 2 years on being convicted under Section 409 with a fine of Rs.50,000/-, to undergo imprisonment for one year on being convicted under Section 420 along with fine of Rs.10,000/- and to suffer imprisonment of one year and to pay fine of Rs.50,000/- on being convicted under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act.
9. The learned Judge by a common judgment dated 29.10.2015 recorded the finding of guilt in Special Case No.11/2014 as well as 12/2014 and found the accused guilty of committing an offence punishable under Section 409, as he concluded that the complainant Page 8 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: entrusted cash to the accused for renewal of his licences for the distinct periods and the accused had to justify his action and since no evidence is brought on record, after Prosecution having established that the amount has been entrusted to him, it can be safely said that the amount was misappropriated as there is no record to show that the amount was deposited in the Government Treasury.
Apart from the aforesaid, the conviction under Section 420 is recorded by rendering a finding that the accused had approached the complainant and represented to him that there is a need to renew his licence and for that purpose the fee has to be paid, and there is no reason to disbelieve the complainant. The accused who was admittedly working as Upper Division Clerk had no business to approach the complainant and by doing so, he dishonestly induced the complaint to deliver cash of Rs.6500/- which was accepted by him without hesitation and instead of depositing the cash in the bank on the basis of challan issued by Excise Department, he misappropriated the amount. However, as far as the offence under Section 465, 468 and 471 is concerned, the trial Judge reached a conclusion that this charge could not be established. However, he also recorded a finding of guilt under Section 13(1)(d) of the Prevention of Corruption Act and upon conviction, imposed appropriate sentences on hearing the accused on sentence.
Page 9 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: It is this judgment which is assailed in the three Appeals filed by the Appellant.
10. The learned Counsel, Mr Nilesh Takkekar, is extremely critical about the impugned judgment, and at the outset, he would submit that the sanction accorded in prosecuting the Appellant is a flawed one and in fact he would submit that the sanction was sought to prosecute the accused under Section 13(1)(d) of the Prevention of Corruption Act and the IPC offences. It is specifically contended by him that in absence of sanction being accorded for prosecution under Section 13(1)(c), coupled with the non-application of mind, has vitiated the order of sanction as the sanctioning Authority has failed to take into consideration the necessary material. Apart from this, on the merits, it is the specific contention of the learned Counsel that the finding of guilt recorded under Section 13(1)(d) of the Prevention of Corruption Act is totally unsustainable as there is no proof of demand and acceptance of the illegal gratification by the Appellant, which is a sine qua non, if the guilt of a public servant has to be established under Section 13(1)(d) (i) and
(ii) of the Act. According to him, it is a settled position that in order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact and this can be proved either by direct evidence which can be done in the nature of oral evidence or documentary evidence and Page 10 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: even by circumstantial evidence, but it is necessary to bear in mind that if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance under Section 7 of the PC Act, but if a public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification, which in turn is accepted by the public servant, it is a case of obtainment and in case of obtainment prior demand of illegal gratification must emanate from the public servant.
Relying upon the decision of the Apex Court in the case of Neeraj Dutta v State (Govt of NCT of Delhi) , the learned Counsel would 1 submit the parameters laid down in the said decision are not met in the present case. He would also place reliance upon the decision in the case of Mukhtiar Singh (since deceased) through his legal representative v/s. State of Punjab , and in particular rely on the 2 following observations of the Apex Court:
"13. The indispensability of the proof of demand and illegal gratification in establishing a charge under sections 7 and 13 of the Act as by now engaged the attention of this court on umpteen occasions, in A. Subair V. State of Kerala, this court propounded that the prosecution in order to prove the charge under the above provisions has to establish the proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent carrying this enunciation further, it was exposited in State of Kerala v/s. C.P. Rao that by mere recovery by itself of the amount set to have been paid by way of illegal gratification would not prove the charge against the accused and in the absence of any evidence to prove payment of Page 11 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: bribed or to show that the accused has voluntarily accepted the money knowing it to be bride, conviction cannot be sustained."
According to the learned Counsel, the proof of demand of illegal gratification is the gravamen of offence under Section 7 and 13(1)(d) (i) and (ii) of the Act and in absence thereof unmistakably the charge shall fail. He would submit that mere acceptance of amount allegedly by way of illegal gratification or recovery thereof de hors the proof of demand, ipso facto would not be sufficient to bring home the charge under Section 7 and Section 13(1)(d) of the Act, as a corollary of this, failure of the prosecution to prove the demand for illegal gratification would prove to be fatal for the prosecution.
In addition, he would also place reliance upon the decision of this Court in the case of Vijay S/o Somaji Wagh v/s. Central Bureau of Investigation , in order to draw a parlance between the offence 3 under Section 13(1)(c) of the Prevention of Corruption Act and under Section 409 of the IPC and the observation of the Court stating that the two are not identical in nature and they have different essence, merit and the contents. According to him, the offence of criminal misconduct under the Prevention of Corruption Act is not identical in essence, import and content with Section 409 of IPC though the charge can be framed together. Alleging that the finding recorded in establishing the guilt of the accused under Section 409 and 420 suffers from perversity by recording that the prosecution has brought on record sufficient Page 12 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: evidence to establish the said offence, is not borne from the record as he would submit that the evidence would clearly reveal that the ingredients of the said offence are not at all made out.
Mr Neelesh Takkekar, would thus pray for the reversal of the finding rendered in the impugned judgment.
11. In order to bring home the guilt, the prosecution has relied on testimony of the complainant, Jude Vaz (PW1) in Special Case No.1/2005. He deposed that he has business of wine and liquor shop in Goa and is in possession of three licences, one being the FCL/PB/219 and the other two licences bearing No.WS/CL/85 and WS/IMFL/89. He deposed that for all the three licences he paid a sum of Rs.6000/- to the Excise Department and he was conducting the business through wine and liquor shop since September 1996. According to him, the period of the licences was from 30.07.1996 to 31.03.1997.
Deposing that somewhere in June-July 1997, the accused came to his shop and informed that his licence has expired and that he should renew it for further period of one year from 01.04.1997 to 31.03.1998 and for which he will have to pay Rs.6,500/-. Since the complainant knew that the accused was working in Excise Department, he paid Rs.6500/- for getting the licence renewed and he was also given one form signed by Mr. Y. Parab, acting Excise Inspector. Further, in July Page 13 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: 1998, once again Mr Naik approached the complainant and informed him that the licence for the period 1997-98 has expired and it deserve a renewal and therefore, once again he paid a sum of Rs.6500/- and was given a Form E-24 signed by Shri Parab, acting Excise Inspector.
According to the version of the complainant, when he went to the Excise Department in Mapusa in March-April 1999 for his permit book, it was refused to him by the Excise Inspector, by informing him, that the licence fee of the past two years has not been paid and he will have to obtain the renewal. When he showed him the form E-24 and E-25, it was informed by Mr Nerurkar that the challans were not paid. Pursuant thereto, the complainant approached the accused, who avoided to produce the challan copies and after waiting for three months, the complaint was lodged with SP Crime Branch, Panaji and the investigating machinery was set rolling, when the supplementary statement of the complainant was recorded and he also handed over Form No.E-24 and E-25 to the Investigating Officer. He also deposed that on the said forms the challan number was not mentioned.
12. PW1 was cross examined at great length and admitted that he obtained licences for retail and wholesale sale of liquor in July 1996 and he do not remember what was the procedure followed by him and even do not recollect whether he had filed any application and to whom. Page 14 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: However, he improved his version by stating that he made an application to the Assistant Commissioner of Excise who issued him the licences and he collected the same from his office at Panaji after paying the licence fee of Rs.6000/- by way of challan in the State Bank of India at Mapusa.
In his cross-examination, he admit that he was aware about the contents of the Form E-24, E-25 and E-25A and was also aware about the procedure to be followed in obtaining the three forms. When specifically asked whether he was aware that the challan number has to be mentioned in the three forms, he answered in the negative by saying that it was only when Mr Nerulkar brought it to his attention, he became aware of that. He categorically admit that he did not mention in his complaint that Mr Nerulkar had informed that the challan numbers are required to be mentioned on Form E-24, E-25 and E-25A. But he was aware that the challans were issued under the signature of the Excise Inspector or some Clerk acting on his behalf. He also admit that he was unaware as to which section of Mapusa Excise Office the accused was attached to.
The complainant gives the following admission while in dock, being subjected to cross examination:
"After starting the business for about 2 or 3 years I had not filed any tax returns. Now I say that I cannot recollect the exact period during which I had not filed tax returns and hence I cannot say whether Page 15 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: during the period of the complaint I had filed tax returns or not. I do not know whether I have shown the license fees in the tax returns as deductions. I do not know whether form E-24 pertains to the license of sale of liquor for retail. I came to know about the difference only after reading the forms. I had started wholesale as well as retail sale business both in 1996. I knew the accused not only because he was a clerk in the Excise Department but also because he used to visit my shop. I have not stated in my complaint that the accused used to visit my shop."
13. The complainant feign ignorance when he state that he was not aware that the licence has to be renewed on expiry of first year, though he admit that in the first licence issued to him, the period mentioned was only one year. He further admit that no receipt was issued by the accused to him regarding the payment of Rs.6500/- made for two different periods, i.e. 1997-98, 1998-99, nor did he demand from the Department any document, receipt of challan showing that the payment has been made. He also do not recollect whether he had received any notice from the Department for not having paid the amount for renewal of licence. He admit that he do not maintain any book of accounts nor maintain the record of sales made for his liquor/bar business but clarify that the accounts are maintained by his Chartered Accountant for the purpose of all type of taxation. He admit that issuance of transport permit issued by the Transport Department has nothing to do with sale or purchase of liquor by him and renewal of licence is not condition precedent for transport permits and it is also not necessary that the licence fee have to be cleared before getting the Page 16 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: permit books. The complainant further gave the following categorical admission:
"Neither in the year 1997 nor in the year 1998 I did not make inquiries with the accused regarding the renewal of the license or receipt of the payment of money. It is not true to suggest that I was always aware that I was required to make an application for renewal of the license and the challan was required to be paid by me in the bank. In 1997-1998 had gone to the Excise department in Mapusa for collecting the transport permit and during both these years I did not find it necessary to make inquiries about the renewal of license or about the money paid to the accused. I agree that there was no difficulty in issuing permit to me during those two years i.e. 1997-
98. Subsequently during the years 1999-2000 the license fees for 1999,2000 were paid as well as the license fees of 1997-98, I say that the license fees of 1999-2000 were paid by me and those of 1997-98 were paid by the accused. I have not stated in my complaint and also in my supplementary statement that the accused had subsequently paid the amounts of the year 1777-98. It is not true to suggest that my statement that the accused subsequently paid the amounts of the license fees for the period 1997-98and 1998-99 is a false statement. I do not remember whether any body was present in my bar in the year 1997 as well as in the year 1998when the accused approached me in my shop. I also do remember whether any body was present near us when the accused told me in the department that the challan copies are with him at home."
The complainant also admit that the accused never represented to him that he is acting in official capacity on account of his post in the Excise Department and he also admitted that the licences issued to him were signed by Suresh Parab and Smt. Naik, both acting as Excise Inspectors.
14. The complainant proved the E-25A form received by him and according to him, through the accused (Exhibit-19). Page 17 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: A perusal of the form reveal that it is issued in favour of Shri Jude Vaz authorising him to sale by retail, Indian Made Foreign Liquor(IMFL)/Country Liquor in H. No.254/2, situated at Taricho Galu, Colvale, Bardez-Goa, and the licence is valid from 01.04.1997 to 31.03.1998 and the licence fee being paid in accordance with the provision of the rules. He also proved the issuance of form No.24, for sale by wholesale/country liquor (Exhibit 21 Colly).
15. It is worth to note that if his licence was not renewed for the subsequent two years, the moot question that arises is how did the complainant continue his business for two years and even when he approached the Excise Inspector for Tourist Permit, he was carrying on the business of liquor and no action was taken against him for not paying the licence fee in seeking renewal and in fact, the necessary forms produced by him do establish that the licence was renewed.
16. Shri Narayan Nerurkar, Excise Inspector to whom the complainant had made reference is examined as PW4, as he was working as Excise Inspector at Mapusa and in the dock, he deposed that one Suresh Parab and Jaya Naik at the relevant time were working as Upper Division Clerk along with the Appellant, Rajesh Naik, who was dealing with issuance of licence and processing of fresh Page 18 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: applications for licences, renewal of licences and other matters related to it.
PW 4 has deposed that in May 1999, Jude Vaz approached him for renewal of liquor licence for 1999-2000 and he called for the files of three licences to find out that the licence fee was not paid for the last two years and the current year, i.e. 1997-98, 1998-99 and 1999- 2000, whereas Mr Vaz told him that the licence fee was already paid by him to Mr Rajesh Naik, the accused. The complainant produced a xerox copy of the licence for the period 1999-2000 and when he checked for a copy in the file of the Department it was not there and they were told that there is no such licence copy in his file. He showed the copy of the licence which carried signature of Jaya Naik, Upper Division Clerk, but Jaya Naik denied that the signature was hers and therefore, PW4 arrived at the conclusion that the licence issued to Jude Vaz is not a genuine licence.
PW4 also deposed that in May 1999 when he had gone for regular checking of licences, he examined licence of one Narayan Mopkar for the year 1999-2000, which also had the signature of Jaya Naik but it was found that this was not a genuine signature and even this copy of licence was not found in the file of Excise Department and Ms Jaya Naik denied that it was her signature.
Page 19 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: In cross examination, PW4 admit that Jude Vaz had approached him for renewal of licence and not for other work and he also admitted that for renewal of licence an application is required to be made to the Excise Inspector and only then the Excise licence is renewed. He also admit that if any licence holder do not pay the licence fee, the Department is required to send a notice to the licence holder and if he do not respond, one reminder shall be forwarded and thereafter his case is forwarded for cancellation through the Commissioner of Excise.
In the cross-examination he admit that from 1997-1998, Shri Parab was the UDC and after that Ms Jaya Naik was dealing with the challan register. It is also admitted by him that when an application for renewal is made, it is given to the UDC and he process the same by preparing the challan, then it is forwarded to the Excise Inspector and the challan is issued by the Excise Inspector and before renewing licence he shall check the challan file and concerned file of the licence holder and thereafter, the licence will be renewed. He categorically admit that issuance of permit book is totally different than issuance of licence/renewal of licence. A very categorical admission by this witness is to the following effect:
"Mr. Jude Lawrence Vaz never referred to Mr. Rajesh Naik but I inferred from his talk that it is Mr. Rajesh Naik. Jude Vaz did not tell me as to when and where exactly he had paid the license fees to Mr. Naik. Only because Mrs Jaya Naik stated that it was not her Page 20 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: signature I inferred that the license was not genuine. I had no proof of the same. I did not record any statement of Mr. Jude Vaz or of Mrs. Jaya Naik. Though reference was made by Mr. Jude Vaz to Mr. Naik, I did not call the accused Mr. Rajesh Naik before me in the presence of Jude and I also did not record any statement of the accused. Jude Vaz never told me as to how much money he had given to Mr Naik."
PW4 also admit that, on being aware of such a situation presented before him by the complainant, he did not put up any note to the superior Assistant Commissioner of Excise or to the Excise Commissioner and did not report the matter and returned the licence to Mr Jude Vaz and did not obtain its copy. He also admit that the accused was promoted as an Excise Inspector in the year 2006. There is also a clear admission that no notice was sent to Mr Jude Vaz for payment of licence fee for renewal and this is all true even as regards Narayan Mopkar as this aspect was not reported to the senior.
17. Two more witnesses which are relevant for establishing the truthfulness of the prosecution version are PW5 and PW6; Jaya Naik, working as UDC being examined as PW5 along with Mr Suresh Parab examined as PW6.
Jaya Naik deposed that the accused was working in Excise office Mapusa from 1992 to April 1999 and she categorically state that the Form E-24, E-25 and E-25A are issued under the signature of Excise Page 21 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: Inspector and in his absence, the senior-most UDC is empowered to sign the form of licence. According to her, Jude Vaz had Excise Licence in Form E-24, which is wholesale IMFL, E-25 wholesale Country Liquor and E-25A for retail sale of packed bottles and the renewal of the licences is due in March of every year, for which the licence holder has to make an application and the UDC who is dealing with the case, prepare the challan and hand it over to the licence holder and the licence holder has to pay the challan fee in the State Bank, two copies of which remain with the Bank whereas the third copy goes to the concerned file and the fourth copy goes to the individual licence file.
Talking about the case in hand, she stated that the dealing person was the accused and after payment of challan, the licence is renewed and the endorsement of challan is made on the original licence for renewal. She state that for the period from 01.04.1997 to 31.03.1998, it was the accused who was dealing with processing of licences and renewals and in December 1998 she was empowered to act as In-charge Excise Inspector and prior to this, Shri Suresh Parab was authorised to act in this capacity.
In July 1998, she was shown three licences of Jude Vaz and was asked whether it bears her signature, she denied that she had signed the licences. Similarly, she was also confronted with licences in favour Page 22 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: of Narayan Mopkar but she denied that the licences bear her signature. In the cross examination, she admit as follows:
"When I was shown the xerox copies of the licenses of Jude Vaz I did not ask for showing to me the originals of the same. It is true that for verification of signatures it is necessary to see the original documents and not the xerox copies. It is not true to suggest that the signatures on the xerox copies of the licenses which were shown to me by the PI belong to me. I started knowing Jude Vaz from the time he started coming for renewal of his licenses. I do not remember whether I was associated With Jude Vaz when he was first granted the excise license."
18. Another relevant witness is Suresh Parab (PW6), who deposed that when he was working at the Excise Station at Mapusa one Shri Shaikh Adam was the Excise Inspector, the accused was one UDC, whereas Jaya Naik was the third UDC. According to him, the work distribution was done by Excise Inspector by written order and the work of dealing with renewal of licences of liquor was assigned to the accused. In absence of Excise Inspector, PW6 deposed that it is the senior-most UDC who has the power to sign the renewals, and he, being the senior- most UDC, was authorised to sign the renewal of liquor licences during 1997-1998.
In the examination-in-chief, he categorically admit to the following effect:
"The police had shown to me three licenses of Jude Vaz in forms no.E-24, and E-24A and these licenses contained my signatures. (Shown to the witness the licenses in exh, 19 and 21 Page 23 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: colly). I identify my signature on all these 3 licenses at point p.
(shown to the witness the specimen signatures in exh.35. l say that all these signatures on both the sheets have been made by me."
....
....
"It is true that the senior most UDC has to act under the instructions of the Excise inspector to perform his duties. Renewal of license is done prior to the expiry of the license and if the renewal is not done within that period a notice is sent to the license holder."
19. Another witness examined by the prosecution in support of its case is Shaikh Adam, Excise Inspector of Mapusa who proved the office order issued by him on 02.01.1997, allotting the duties to the UDCs working under him and as far Rajesh Naik is concerned, he was entrusted with the duty of "renewal of licence of wholesale/and retail sale of IMFL & CL including packed bottles and for consumption on the premises."
In the cross examination, PW7 admit that during his tenure as Excise Inspector nobody had complained to him regarding non- payment of excise licence fee or non-renewal of licence. He also categorically deposed as below:
"Application for renewal of licence is made through Excise Commissioner and processed through Excise Station, i.e. Excise Inspector."Page 24 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: He also admitted that the moment the application is received for renewal of excise licence, the Excise Inspector merely puts his initial on the application permitting its renewal and send it to the concerned dealing hand for issuance of challans for payment of renewal fees.
He also admit that failure to effect the payment of licence fee, the Excise Inspector recommend to the Commissioner for cancellation of licence under Section 16(2) of the PC Act. He also state that a notice is required to be sent to the licence holder upon expiry of licence period reminding non-payment and when specifically asked whether the list of defaulters is in the custody of Excise Inspector, he answered that there is no list of defaulters maintained during the grace period payment and in the notice sent to the defaulter, it is mentioned that the licence will be subject to cancellation for non-payment and such reports are regularly forwarded to the Excise Commissioner for cancellation.
20. Shrinivas Reddy is examined as PW20, since he accorded sanction to prosecute the accused under Section 13(1)(d) of the Prevention of Corruption Act. According to him, he was supplied a copy of the Panchanama, complaint report of handwriting expert and statement of witnesses and he was satisfied that a case was made out against the accused to accord sanction and he accorded sanction Page 25 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: under Section 19 of the Prevention of Corruption Act, 1988. In the cross examination, he was however unable to recall what was the material perused by him before according the sanction and he admit that he did not call for the challan files and/or the list of defaulters to verify the name of Jude Vaz. He admit that the challan file was maintained by the Excise Inspector.
When a specific question was put to him about the contemporaneous record recording the list of defaulters, he states that there is no such record maintained and such errors or lapses are detected either during audit or next renewal or when the parties approach office or in the course of random inspection. However, he also categorically state that the Inspector is required to send the list of defaulters to the office of Excise Inspector and he would question the Inspector if such a list is not sent.
During his deposition, he has proved the sanction order (Exhibit 73).
21. Another set of witnesses examined by prosecution are various private individuals, into the business of liquor and who have deposed that licence fee has been paid by them to the accused Rajesh Naik.
This include witnesses PW9, PW10, PW11, PW12, PW16, PW17, PW18, PW19 and PW25 and I have perused their depositions Page 26 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: carefully. According to PW9, he was issued licence for his wine bar by Mapusa Excise Station at Mapusa and he stated that accused was working in the Excise Station at Mapusa and he used to pay him money to pay the licence fee and he has paid him licence fees for the period 1996-97, 1997-98 and 1998-99, i.e. Rs.3600/- and he was asking the licences to be renewed but the accused faulted and he gave him renewed licence for the year 1999-2000 and he showed this licence to Narayan Nerulkar. On being extensively cross examined, he was asked as to why he did not make any inquiry from the accused despite paying him the money for license fee, no licence was issued to him, he gives the following admission:
"I do not have any receipts to demonstrate payment of any amount for the years 96-97, 97-98 and 98-99. witness voluntarily stated that I asked the accused for the receipts but he did not give the receipts. It is correct that my statement was recorded by the police on 6.7.99. I do not remember whether I had stated to the police that I had asked for the receipts (witness is confronted with the above statement where it is not found so recorded). It is not true to suggest that my statement that I paid Rs. 3,600/- @ 1200 per year for the period from 96-07, 97-98 and 98-99 is false. The documents which was given for the period 99-00 was signed by the Excise Inspector and the said Excise Inspector was Narayan Nerulkar."
22. PW10 Mr Joaquim Fernandes did not support the case of the prosecution and he deposed that he had paid the Excise fee to one person from Excise Department but he did not know the name of the person. He also deposed that the person told him that the receipt will Page 27 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: be given to him but he never received it. Similarly, the evidence of PW11, 12 also do not name the Appellant.
PW16 deposed that he had given money to Rajesh Naik who informed him that he had paid the amount and accounted in the file maintained by the office but he did not issue licence for the year 2000 nor issued any challan. He admit that he had never received a notice from the Department to show cause why licence should not be cancelled as he was a defaulter.
PW17 did not identify the person to whom the payment was made but in the dock he identified the said person to be the accused but he is unable to state as to on what date the amount was paid.
PW18 deposed thus:
"I know one Rajesh Naik, the person in the dock as he was a family friend and passing by my house. I requested him to pay the license fees in 1997 and handed over the cash of the fees due for that year. These fees were for the years 1996-1997 and 1997- 1998.
I went to the Department in July 1999 to pay the license fees for that year when I was informed that I had not paid the license fees for the previous two years and as such I could not make the payment. I made inquiries with the accused regarding the money given by me for payment and who disclosed that he had not made the payment. The accused then told me that he would make the payment for the two years of default i.e.1996-1997 and 1997- 1998. I do not recall the dates when I had handed over the amounts to him."Page 28 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: PW19 deposed that he was regularly paying the licence fee since he was running a Bar and Restaurant at Verem and in the Excise Office he met the accused Rajesh Naik who told him that he would make the payment of licence fee on his behalf and therefore handed over Rs.2500/- to him and later on came to know that he has not deposited the money.
In the cross-examination, he admitted that there is no receipt to support his payment that he had handed over Rs.2500/- to the accused and he is also aware that the accused was Excise Inspector but in no point of time and in fact the renewal is to be done by the Excise Inspector.
23. In the wake of the investigation being carried out and the charge sheet being filed, the Investigating Officers are also examined by the prosecution and there is also evidence of handwriting expert M. Krishna (PW23), who received letter from SP, CID, Panaji requesting to examine certain documents.
In pursuance to the said query, he was asked to give his opinion on the questioned documents along with the specimen signatures and he performed the necessary task and forwarded a report to the SP, CID opining that the person who wrote the red enclosed signatures stamped and marked S1, S2, S10, S11, S12 and S13 also wrote the red Page 29 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: enclosed signatures similarly stamped and marked Q1, Q2 and Q3 and the person who wrote the red enclosed writing stamped and marked as S3 -S7 and S14 also wrote the red enclosed writings similarly stamped and marked Q4 Q5, Q6, Q7 and Q8.
This witness produced the admitted English handwriting of Rajesh Naik for leave at S14 admitted in evidence (Exhibit 86) and the admitted leave application of Jaya Naik at S15 admitted in evidence (Exhibit 87) and the original Challan in the name of Domingo Mendes signed by Jaya Naik at S16 admitted in evidence. (Exhibit 88).
In the cross-examination, he admit that the reason as to why he was of the opinion that the handwriting belonged to the writer of the document is not recorded in his report. A very categorical admission on his part to the following effect make the case of the prosecution even worse:
"I admit that the authorship of a questioned document is confirmed only after examining the questioned document and the admitted document and by the test of elimination. I have not referred to the document S15 in my Report Exh.84 colly since the questions were already fixed with some other authors. I have also not referred to S16 for the same reason."
....
....
I admit that there is no comparison between the admitted signatures of Rajesh Naik on S14 (Spl.1/2005 Exh.86) and the document Q4, 5 and 6 (Spl.2/2005 Exh.11 colly). I add that the writing of Rajesh Naik in this leave application S15 Exh.86 has been taken into consideration while examining the disputed Page 30 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: writings Q7 and Q8 (Exh.16 in Spl.2/2005). I have not considered the signature of Rajesh Naik in his leave application S14 (Spl.1/2005 Exh.86) with Q8 (Exh.16 in Spl.2/2005). I admit that I have not compared the signature of Rajesh Naik S14 Exh.86 with the signature on Q8 (Exh.16 in Spl.2/2005). I now say that I had compared this signature in S14(Spl.1/2005 Exh.86) with Q8 part of Exh.16 colly."
His report (Exhibit 84) along with the requisition forwarded to him (Exhibit 83) are proved through this witness.
24. The Investigating Officers who recorded various statements and carried out the investigation and those who registered FIR are examined who deposed before the Court about the investigation that is carried out.
25. I must now appreciate the findings in the impugned judgment, in the backdrop of the evidence that was brought before the trial Court through Prosecution witnesses.
26. Since there is a conviction of the accused under Section 13(1)(d) read with Section 13(2) of the PC Act, he has been sentenced on this count and sentenced to undergo imprisonment of one year, it is necessary to appreciate whether the evidence is sufficient to sustain this conviction. Section 13(2) prescribe the punishment of criminal conduct by a public servant and what amounts to criminal misconduct Page 31 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: is what is set out in Section 13. Since we are concerned with Section 13(1)(d), I deem it appropriate to re-produce the same:
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
...
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;"
For bringing the act of a public servant within the fold of criminal misconduct, and in particular, clause (d), it is necessary to establish the corrupt or illegal means, by which he obtained for himself any valuable thing or pecuniary advantage or abuse of his position for obtaining for himself or for any other person any valuable thing or pecuniary advantage or that while holding the office as public servant, he obtain any valuable thing or pecuniary advantage without any public interest.Page 32 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: The impugned judgment while rendering a conviction under this provision has relied upon the evidence of the complainant and other licence holders who have urged that the accused has collected the renewal fees from them but failed to deposit it in the Bank. As regards the said charge, the trial Judge arrived at a conclusion that the accused obtained for himself pecuniary advantage of Rs.6500/- from the complainant, Jude Vaz on the pretext of renewal of his licence for the year 1997-98. The charge, however, do not disclose any acceptance of such pecuniary advantage by the accused from the other licence holders for similar period and the evidence of the other licence holders has to be considered as corroboration of the case of prosecution whereas the charge as far as acceptance of Rs.6500/- from the complainant and misappropriating the same without depositing in the Government Treasury stands established without any reasonable doubt.
Unfortunately, there is no specific discussion about the charge faced by the accused under Section 13(1)(d) except the observation in paragraph 120 where an inference is drawn that the prosecution has succeeded in proving the charge against the accused and the trial Judge record the following finding:
"120. From the overall evidence brought on record by the Prosecution including the aspect of sanction under Section 19 of Prevention of Corruption Act and Section 197 of Cr.P.C., it is clear that the Prosecution has succeeded in proving the charge Page 33 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: leveled against the accused in respect of Section 13(1)(d) of Prevention of Corruption Act in both the matters i.e. the accused accepted/obtained for himself pecuniary advantage by abusing his position as a public servant i.e. UDC of Excise Dept., Mapusa of Rs.6,500/- from Jude Vaz and other similar license holders who have been examined by the Prosecution, for the period 01.04.1997 to 31.03.1998. However, it is required to note that the charge is very specific i.e. the accused obtained for himself pecuniary advantage of ₹6,500/- from the complainant Jude Vaz on the pretext of renewal of his licenses for the year 1997-98. The charge does not disclose about accepting such pecuniary advantage by the accused from other license holders for the similar period. Therefore the other license holders who have deposed before this Court has to be considered only as corroboration of the case of Prosecution whereas the charge as far as accepting ₹6,500/- from the complainant and misappropriating the same without depositing it in the government treasury stands established beyond reasonable doubt.
27. In Mukhtiar Singh (supra), while dealing with a charge under Section 7 and 13(2) relating to illegal gratification, the Apex Court has reiterated that to prove the charge under the two provisions, the prosecution has to establish by proper proof, demand and acceptance of illegal gratification and till that is accomplished the accused should be considered as innocent. Recording that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand ipso facto, would not be sufficient to bring home the charge under these two sections of the Act, it is held that as a corollary failure of the prosecution to prove demand for illegal gratification would be fatal and mere recovery of the amount would not entail the conviction thereunder.
Page 34 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: Indispensability of the proof of demand and illegal gratification in establishing of the charge under Section 7 and 13 of the Act is well settled and on more than one occasion.
Mere possession and recovery of currency notes without any proof of demand is held not to establish an offence under Section 7 as well as Section 13(1)(d) of the Act. It is all the while recounted that in absence of any proof of demand and illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand is held to be indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it is held that qua Section 20 of the Act, that any presumption would arise only on such proof of demand.
The proof of demand being the gravamen of the offence under Sections 7 and 13(1)(d), in absence thereof, it has been the consistent view of the Apex Court as well as the High Courts that the charge under Sections 7 and 13 cannot be said to be proved.
28. Appreciating the evidence placed before the Court in the present case, it is too far-fetched a conclusion to derive that the ingredients of Section 13(1)(d) are fulfilled as neither the money has been found/recovered from the accused nor it is conclusively established by Page 35 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: either of the witnesses that the money was actually paid to the accused as according to the complainant, he admitted that there is no proof or any receipt given to him about the money being handed over to him. Moreover, the other witnesses who are examined to corroborate his version, are grossly lacking in establishing the case of the prosecution that they paid the amount to the accused for renewal of their licence. In fact, the witnesses, the licence holders who have been examined to corroborate the version of the complainant, some of them have even failed to identify that the money was paid to the accused and those who deposed that they have paid do not have any proof thereof, except a bald statement. In any case, it is the version of the licence holders that the money was given to be deposited towards licence fee and if it was not deposited, the question for consideration is why was the licence not cancelled.
As far the complainant PW1 is concerned, he continued to run his liquor business without the licence being renewed for a period of two years and he has admitted that he was aware and conscious that the period of licence was one year and when he obtained the licence, he had paid licence fee, indirectly indicating that he was aware that every year, the licence had to be renewed by paying requisite fees. Page 36 of 45
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29. When the evidence of the complainant is read along with the evidence of officers of the Excise Department, in particular, the Excise Inspector-PW7 as well as Excise Commissioner - PW20, one thing emerges with clarity that it was never brought to the notice of the superiors that there was default on part of the licence holders and despite they not paying licence fee, their businesses were in operation.
PW7, Shaikh Adam, Excise Inspector has admitted that nobody ever made a complaint to him regarding non-payment of licence fee or non-renewal of licence. Similarly, PW20, Shrinivas Reddy, the Commissioner of Excise, has also admitted that there is no contemporaneous record of any lapses but they are detected during audit or the next renewal but upon the licence fee not being paid, notices are issued asking to show cause as to why the licence allotted cannot be cancelled.
The complainant PW1 as well as the licence holders have categorically admitted that they have not received any such notice and therefore it is difficult to say that the licence fee was not deposited, since if the fee was not deposited, the licence would not have been renewed but the complainant, i.e. PW1 as well as the other licence holders continued to operate the licence, giving rise to an inference that the Department did not find them placed in the defaulter list and no action was initiated for recall of their licences despite the fees not Page 37 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: being paid. It is in these circumstances, the finding rendered by the learned trial Court that there was acceptance of illegal gratification, which is not preceded by any demand, I am unable to concur with the finding reached by the trial Judge that the accused is guilty under Section 13(1)(d) and deserve penalty under Section 13(2).
30. Coming to the conviction of the accused/Appellant, under Section 420 along with Section 409 of IPC, it is to be noted that the finding rendered is to the following effect:
"121. Similarly, from the above discussion it is clear that the accused was working as UDC at the Excise Station at Mapusa and being a public servant committed criminal breach of trust when the complainant Jude Vaz handed over an amount of Rs.6500 towards renewal of his 3 licenses for the period from 01.04.1997 to 31.03.1998. In this respect the contents/ingredients of Section 405 of IPC defining criminal breach of trust stands established. PW1 the complainant has very specifically deposed that he handed over an amount of Rs.6500/- to the accused who came to his shop and told him that his licenses will have to be renewed and for that purpose an amount of Rs.6,500/- is required, shows that the property/money was entrusted with the accused with a trust that he will deposit along with the challans in the treasury for renewal of licenses; however, instead of it the accused failed to deposit such amount and handed over the licenses to the complainant which were not disclosing the challan particulars thereby dishonestly misappropriating the property given to him for his own use. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved, may, in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion as held in the case of Ram Narayan vs. CBI ((2003)3 SCC 641)."Page 38 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: This finding is also unsustainable as in the absence of proof that the money was entrusted to the accused, and in absence of the entrustment being proved, there is no question of arriving at an inference that there is criminal breach of trust.
31. In the recent decision of the Apex Court in the case of Delhi Race Club (1940) Limited & Others v/s State of Uttar Pradesh And Anr , where the distinction between the offence of criminal 4 breach of trust and cheating has been succinctly set out in the following words:
"36. What can be discerned from the above is that the offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients:
In order to constitute a criminal breach of trust (Section 406 IPC) (1) There must be entrustment with person for property or dominion over the property, and (2) The person entrusted:
(a) Dishonestly misappropriated or converted property to his own use, or
(b) Dishonestly used or disposed of the property or wilfully suffers any other person so to do in violation of:
(i) Any direction of law prescribing the method in which the trust is discharged; or
(ii) Legal contract touching the discharge of trust (see: S.W. Palanitkar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] ).
Similarly, in respect of an offence under Section 420IPC, the essential ingredients are:
Page 39 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: (1) Deception of any person, either by making a false or misleading representation or by other action or by omission;
(2) Fraudulently or dishonestly inducing any person to deliver any property, or (3) The consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpreet Singh Ahluwalia v. State of Punjab (2009) 7 SCC 712).
37. Further, in both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception.
38..
39. Every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but, any breach of trust with a mens rea, gives rise to a criminal prosecution as well. It has been held in Hari Prasad Chamaria v. Bishun Kumar Surekha (1973) 2 SCC 823) (SCC p.824, para 4.) "4. We have heard Mr Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 of the Penal Code, 1860. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 of the Penal Code, 1860. There is nothing in the complaint to show that the respondent had dishonest or fraudulent intention at the time the appellant parted with Rs 35,000. There is also nothing to indicate that the respondents induced the appellant to pay them Rs 35,000 by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant Page 40 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating."
40. To put it in other words, the case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case."
32. The distinction between the offence of criminal breach of trust and cheating is thus a fine one, as in case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct but for this, the subsequent conduct is not the sole test. Mere breach of contract may not give rise to criminal offence of cheating unless fraudulent or dishonest intention is shown to be present right from the beginning of the transaction, i.e. the time when the offence is said to have been committed. Whereas, for criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it or it must be the property of some other person other than the accused or the beneficial interest in or ownership of it must be of some other person and the accused must hold that property on trust of such other person. Page 41 of 45
15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: For cheating, the criminal intention is necessary at the time of making false or misleading representation that is, since inception but in criminal breach of trust, mere proof of entrustment is sufficient and it is sufficient to establish that the offender is lawfully entrusted with the property and he dishonestly misappropriated the same.
In light of the aforesaid position, when the facts of the case are examined along with the evidence that has appeared before the trial Court, I find that the necessary ingredients of Section 409 as well as Section 420 are conspicuously absent. The prosecution, through the witnesses examined by it, i.e. PW1 as well as the other licence holders have failed to establish that the money was entrusted to the Appellant/accused in discharge of his official duties as it has also come on record that he was not the competent authority to issue the licence, as the issuance of licence is the function of the Excise Inspector and the prosecution has failed to prove that the licence which is issued to the complainant in form E-24 and E-25A is under the signature of the accused and he has forged the signature. In fact, it is evidently clear that the complainant as well as the licence holders continued to enjoy their licences and as far as the complainant is concerned, he received the renewed licence under the signature of Excise Inspector, S. Y. Parab and the two forms produced by him, i.e. E-24, E-25A, bear the signature of Shri Parab. These forms are issued for renewing the licence of the complainant on payment of licence fee and the Page 42 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: Department did not take any action for non-renewal of the licence on the complainant and I am not persuaded on the basis of the evidence on record to accept the case of the prosecution, that the complainant was cheated because his licence was not renewed. Each one of the licence holders who has been examined by the prosecution has got his licence renewed and as far as PW9, Narayan Mopkar is concerned, he had deposed that since the Excise Inspector came to him and asked him to show the licence, he had shown the licence and was told that the renewed licence was not proper and the licence was taken away. He failed to answer that if he paid the licence fee money but his licence was not renewed, then why did he not take any action and he is unable to respond. None of the licence holders who have deposed that they have paid money have produced any proof of the payment.
Moreover, one thing is baffling is if the licence holders knew that the licence is issued by the Excise Inspector and they have been paying the licence fees for its renewal for years together, why did they pay the amount to the accused and despite their licence being not renewed, continued to operate the liquor business. The whole version of the prosecution case therefore appear to be doubtful and it is surprising to note that Suresh Parab who has signed the licence is merely saying that it was not his signature, so also Jaya Naik became witnesses of the prosecution case and did not face any accusation and they did not bother to inform this to the superiors including the Excise Inspector or Page 43 of 45 15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: the Commissioner and therefore, it cannot be said with certainty that it was only the accused who was responsible but it is quite possible that other officials of the Excise Department were involved into this act of permitting the licence to be run and business being carried out despite the licence fee having not been paid.
For this reason, since the version of the prosecution is doubtful and the benefit of doubt must go to the accused, the finding rendered by the trial Judge cannot be sustained as the Judge has presumed many facts and acting on these presumptions, has convicted the Appellant of offence under Section 13(1)(d) of the Prevention of Corruption Act, in absence of any demand and also arrived at a conclusion that he is responsible for committing an offence under Section 409 of IPC and also for cheating under Section 420.
In my considered opinion, the material laid by the prosecution before the trial Court being insufficient to sustain the conviction under the said provisions, the judgment deserve to be quashed and set aside along with the sentences imposed on the Appellant.
As a result, the Appeals preferred by the Appellant are allowed. The Appellant is entitled to acquittal upon reversal of the finding in the judgment dated 29.10.2015 and 30.10.2015 and he is entitled to be set at liberty.
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15th October, 2025 ::: Uploaded on - 28/10/2025 ::: Downloaded on - 31/10/2025 22:18:43 ::: The three Criminal Appeals No.59 of 2015, 60 of 2015 and 61 of 2015 are allowed.
BHARATI DANGRE, J.
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