Bombay High Court
Ramesh Lachmanayya Donkalwar vs The State Of Mah.Thr.Acb Nagpur on 7 May, 2024
2024:BHC-NAG:5380
Judgment 1 J.Cri.Appeal No.428.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 428 OF 2005
Ramesh S/o Lachmanayya Donkalwar,
Aged about 36 years,
R/o. Ramtek, District Nagpur.
.... APPELLANT
// VERSUS //
The State of Maharashtra,
Through Anti-Corruption Bureay,
District Nagpur.
.... RESPONDENT
_____________________________________________________________
Mr. Ved Deshpande, Advocate for Appellant.
Mr. U.R. Phasate, Additional Public Prosecutor for Respondent.
_____________________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 01.04.2024.
PRONOUNCED ON : 07.05.2024.
JUDGMENT.
1. By this appeal, the appellant (accused) has challenged
the judgment and order of conviction and sentence dated 27.07.2005
passed by learned Judge, Special Court, designated under The
Prevention of Corruption Act, 1988 (learned Judge of the trial court),
Nagpur in Special Case (ACB) No.15/1998. By the said judgment,
Judgment 2 J.Cri.Appeal No.428.2005.odt
the accused is convicted for the offences punishable under Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act, 1988 (for short, "the said Act") and sentenced to suffer simple
imprisonment for three years and to pay fine of Rs.1,000/-, in default
to suffer simple imprisonment for a period of six months.
2. The brief facts of the prosecution's case runs as under :
(i) In August-1997, accused Nos.1 and 2 were attached to
Police Station, Ramtek and on 06.08.1997, they both were deputed
on duty at Police Help Center, Mansar. The Deputy Superintendent of
Police (Dy.S.P.) Mr. Hiware received a discreet information that the
police staff on duty at Police Help Center were recovering entry fee
from the vehicles passing from Police Help Center. After receiving
discreet information, the Dy.S.P. Mr. Hiware decided to lay a trap.
Accordingly, he called two panchas. Along with the panchas ACB staff
left ACB office and went at Somalwada. Dy.S.P. Mr. Hiware along
with the panchas and ACB staff hired Swaraj Mazda mini truck to go
to Mansar. They proceeded along with the articles like
Phenolphthalein powder bottle, sealed container Sodium Carbonate,
four bottles, one big size bottle, measuring tape, vax material etc.
After reaching at Mansar, he received further information that three
boys are engaged by Police Help Center, who used to stop vehicles
Judgment 3 J.Cri.Appeal No.428.2005.odt
and collecting entry fee on direction of the constables. They verified
said information by passing through Mansar road and found that
vehicle was stopped by three boys showing torch and their vehicle
was also stopped. At the said Center, they saw the police constable
sitting in the tent. Their vehicle was checked by the said three boys.
Accordingly, they have taken their mini truck on Paoni road.
Accordingly, they have drawn the panchnama. Before drawing the
panchnama, the trap Officer shown demonstration as to the
characteristic of Phenolphthalein powder and Sodiam Carbonate and
also instructed the panchas. The trap Officer had applied the said
Phenolphthalein powder and Sodiam Carbonate solution on a tainted
note of Rs.50/-. For the trap, they have taken the help of one truck
driver. The truck driver was also instructed that if he was asked to
produce the documents, he should not object and shall give a proper
reply. Thereafter, the trap Officer sat along with the driver in said
truck. Accordingly, Pre-trap Panchnama was drawn.
(ii) After Pre-trap Panchnama, the trap Officer, panchas along
with the truck driver and the mini truck proceeded from Paoni
towards Manasar. At the Police Help Center, the truck was stopped.
The driver Ramlochan Yadav of the truck handed over the tainted
note of Rs.50/- to the cleaner. The panch No.1 went along with
Judgment 4 J.Cri.Appeal No.428.2005.odt
cleaner and approached to the accused persons who were sitting in
the tent. He handed over the said amount to the accused No.1
thereafter, panch No.1 gave a signal and immediately the accused
No.1 was caught and the tainted note was recovered from him. Both
the accused are arrested. Accordingly, Post-trap Panchnama was also
drawn. The amount was seized and after completion of the formality,
the trap Officer has lodged a report against both the accused. After
obtaining the due sanction, the charge-sheet was filed.
3. To substantiate the allegations, the prosecution has
examined in all eight witnesses that are : P.W.-1 Smt. Rashmi Shukla/
Sanctioning Authority Exhibit-17, P.W.-2 Vasant Namdeorao
Bedarkar/panch No.1 Exhibit-22, P.W.-3 Nandkishor Nilkant
Borde/panch No.2 Exhibit-30, P.W.-4 Prakash Lalasing Pawar/Dy.S.P.
Exhibit-31, P.W.-5 Meghnath Dipsingh Damniya/Police Head
Constable Exhibit-32, P.W.-6 Dilip Hiralal Tiwari/Police Nayak
Exhibit-34, P.W.-7 Vinayak Sitaramji Hiwre/Trap Officer Exhibit-37
and P.W.-8 Prashant Prabhakar Kolwatkar Exhibit-51.
4. Besides the oral evidence, the prosecution further relied
upon Sanction Order Exhibit-19, Seizure Memos Exhibit Nos.23 to
26, Post-trap Panchnama Exhibit-27, Pre-trap Panchnama Exhibit-29,
Judgment 5 J.Cri.Appeal No.428.2005.odt
First Information Report Exhibit-33, Report Exhibit-39, Letter to C.A.
Exhibit-41 and C.A. Report Exhibit-45.
5. After considering the evidence adduced during the trial,
learned Judge of the trial Court held the accused No.1 guilty of the
offence punishable under Section 13(1)(d) read with Section 13(2)
of the said Act and convicted and sentenced him as the aforesaid.
6. I have heard learned Counsel Mr. Ved Deshpande for the
appellant and Mr. Phasate learned Assistant Public Prosecutor for the
State. I have been taken through the entire evidence so also the
judgment and order of conviction and sentence impugned in the
appeal.
7. The learned Counsel Mr. Ved Deshpande for the appellant
submitted that the learned Judge of the trial Court erred in
convicting the accused in absence of any cogent and reliable evidence
as the demand and acceptance of the alleged illegal gratification of
Rs.50/- is not proved. It is submitted that mere possession and
recovery of currency note from the accused No.1 without proof of
demand will not bring home the offence under Section 13(1)(d) of
the said Act. It is submitted that demand and acceptance of illegal
Judgment 6 J.Cri.Appeal No.428.2005.odt
gratification is a sine qua non to attract provisions. The burden to
prove accusations with regard to the acceptance of illegal
gratification lies on the prosecution. As far as the evidence of the
complainant and panch are concerned, which is insufficient to prove
that there was a demand and in pursuance of the demand, the
amount was accepted. He further submitted that the evidence shows
that the accused has returned Rs.30/- when the currency of Rs.50/-
was given to him. The sanction accorded is also not a valid sanction
and it is without application of mind. Thus, for want of valid sanction
also, the case of the prosecution fails and he prays for acquittal of the
accused.
8. In support of his contentions, learned counsel for the
accused placed reliance on following decisions :-
(1) Mahadeo S/o Sadashiv Kanoje Vs. State of Maharashtra,
Criminal Appeal No.136/2006, decided on 06.03.2024;
(2) Khaleel Ahmed Vs. State of Karnataka, reported in
(2015) 16 SCC 350;
(3) C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala,
reported in (2009) 3 SCC 779,
(4) State of Maharashtra Vs. Dnyaneshwar Laxman Rao
Wankhede, reported in (2009) 15 SCC 200;
Judgment 7 J.Cri.Appeal No.428.2005.odt
(5) State of Punjab Vs. Madan Mohan Lal Verma , reported in
(2013) 14 SCC 153;
(6) Mukhtiar Singh (Since Deceased) Through his Legal
Representative Vs. State of Punjab, reported in (2017) 8
SCC 136;
(7) Onkar Tukaram Ramteke Vs. The State of Maharashtra ,
Criminal Appeal No.357/2012, decided on 17.03.2022,
(8) Mohan Bhaiyyalal Shrivastava Vs. The State of
Maharashtra, Criminal Appeal No.265/2005, decided on
04.09.2023;
(9) N.P. Lotlikar Vs. C.B.J. and another, reported in 1992 SCC
OnLine Bom 438 and
(10) Banarsi Dass Vs. State of Haryana, reported in (2010) 4
SCC 450.
9. Per contra, learned Additional Public Prosecutor for the
State submitted that the evidence of complainant, who is the trap
Officer, is corroborated by a shadow panch as well as panch No.2. He
submitted that a decoy was sent to ascertain and verify the fact of
demand of the money, the accused has accepted the amount. The
amount was recovered from the accused and no plausible explanation
is put forth by the accused. The prosecution has also proved that the
Judgment 8 J.Cri.Appeal No.428.2005.odt
sanction is as per law and, therefore, no interference is called for in
the impugned judgment.
10. In support of his contention, the learned APP placed
reliance on following decisions :-
(1) Hazari Lal Vs. State (Delhi Administration), reported in
(1980) 2 SCC 390;
(2) State of A.P. Vs. P. Satyanarayana Murthy, reported in
2009 ALL MR (Cri) 1264 and
(3) Neeraj Dutta Vs. State (Government of NCT of Delhi) ,
reported in (2023) 4 SCC 731.
11. Since question of validity of the sanction has been raised
as a primary point, it is necessary to discuss an aspect of sanction.
The sanction order was challenged on the ground that the sanction
was accorded without application of mind and mechanically.
12. In order to prove the sanction order, the prosecution
placed reliance on the evidence of P.W.-1, who is the Sanctioning
Authority namely Smt. Rashmi Shukla. The sum and substance of her
evidence is that in 1998 she was working as Superintendent of Police
Nagpur Rural. The powers of appointment and removal are vested
Judgment 9 J.Cri.Appeal No.428.2005.odt
with Superintendent of Police. She received the case papers from ACB
about the trap at Mansar. She also received the bunch of documents
along with the list. She examined the case papers and accorded the
sanction for prosecution of the accused. The said sanction order is at
Exhibit-19. During her cross-examination, it came on record that
accused No.1 - Ramesh Donkalwar was not posted at the place of
trap, but the duty was allotted to him as a P.S.O. at Police Aid Centre,
Mansar. She specifically admitted that sanction order was not
personally drafted by her, its draft was received from ACB Office. She
further admitted that she has not made any modification or alteration
in the draft sent by the ACB at the time of giving sanction. She
further admitted that she has not enquired from the ACB who are
those three boys who are shown as witnesses and not as criminals. It
is further came in her cross-examination that the alleged bribe
amount was Rs.20/- as the amount of Rs.30/- was returned by
accused. Thus, the cross-examination shows that she has not
prepared the said sanction order, but she has accorded the sanction
on the basis of draft sanction order. It further reveals from her
evidence that she has not mentioned on the basis of which document
she comes to the conclusion that the sanction is to be accorded. On
perusal of the sanction order, it also reveals that she has reproduced
the entire prosecution story and not referred any document on the
Judgment 10 J.Cri.Appeal No.428.2005.odt
basis of which she come to the conclusion that sanction is to be
accorded.
13. Whether sanction is valid or not and when sanction can
be called as valid, the same is settled by the various decisions of the
Honourable Apex Court as well as this court.
14. The Honourable Apex in the case of Mohd.Iqbal Ahmad
vs. State of Andhra Pradesh, reported in 1979 AIR 677, has held that
what the Court has to see is whether or not the Sanctioning Authority
at the time of giving the sanction was aware of the facts constituting
the offence and applied its mind for the same and any subsequent
fact coming into existence after the resolution had been passed is
wholly irrelevant. The grant of sanction is not an idle formality or an
acrimonious exercise but a solemn and sacrosanct act which affords
protection to government servants against frivolous prosecutions and
must therefore be strictly complied with before any prosecution can
be launched against the public servant concerned.
15. The Honourable Apex Court, in another decision, in the
case of CBI vs. Ashok Kumar Agrawal, reported in 2014 Cri.L.J. 930,
has held that sanction lifts the bar for prosecution and, therefore, it is
Judgment 11 J.Cri.Appeal No.428.2005.odt
not an acrimonious exercise but a solemn and sacrosanct act which
affords protection to the government servant against frivolous
prosecution. There is an obligation on the Sanctioning Authority to
discharge its duty to give or withhold sanction only after having full
knowledge of the material facts of the case. The prosecution must
send the entire relevant record to the Sanctioning Authority including
the FIR, disclosure statements, statements of witnesses, recovery
memos, draft charge sheet and all other relevant material. It has been
further held by the Honourable Apex Court that the record so sent
should also contain the material/document, if any, which may tilt the
balance in favour of the accused and on the basis of which, the
competent authority may refuse sanction. The authority itself has to
do complete and conscious scrutiny of the whole record so produced
by the prosecution independently applying its mind and taking into
consideration all the relevant facts before grant of sanction while
discharging its duty to give or withhold the sanction. The power to
grant sanction is to be exercised strictly keeping in mind the public
interest and the protection available to the accused against whom the
sanction is sought. The order of sanction should make it evident that
the authority had been aware of all relevant facts/materials and had
applied its mind to all the relevant material. In every individual case,
the prosecution has to establish and satisfy the court by leading
Judgment 12 J.Cri.Appeal No.428.2005.odt
evidence that the entire relevant facts had been placed before the
Sanctioning Authority and the authority had applied its mind on the
same and that the sanction had been granted in accordance with law.
16. The absence of description of documents referred by
Sanctioning Authority P.W.-1 Rashmi Shukla would show the lack of
application of mind by the competent authority while according the
sanction.
17. In view of settled principles of law, it is crystal clear that
Sanctioning Authority has to apply his/her own independent mind
for generation of his/her satisfaction for sanction and order of
sanction should not be construed in a pedantic manner. The purpose
for which an order of sanction is required, the same is to be borne in
mind. In fact, Sanctioning Authority is the best person to judge as to
whether public servant concerned should receive protection under
the said Act by refusing to accord sanction for his prosecution or not.
Thus, the application of mind on the part of the Sanctioning
Authority is imperative. It is true that the sanction order should not
be an order like court orders, but it should reflect application of
mind.
Judgment 13 J.Cri.Appeal No.428.2005.odt
18. Perusal of sanction order shows that Sanctioning
Authority P.W.-1 Rashmi Shukla reproduced the prosecution case and
accorded the sanction. She specifically admits that she has not
drafted the sanction order, but she has received the draft from the
ACB Office and without any modification, she has accorded the
sanction. Thus, it reveals that the Sanctioning Authority has not
accorded the sanction by applying her own mind.
19. Besides the issue of sanction, the prosecution claimed
that the accused accepted the gratification amount.
20. In order to prove the 'acceptance', the prosecution mainly
placed reliance on the evidence of P.W.-2 Vasant Bedarkar, who acted
as a panch for the trap. As per his evidence, his office received a
communication from ACB Office, Nagpur, he and one Nandu Burde
were deputed to act as a panch. They met the trap Officer Mr.
Hiware, who had taken them at Somalwada. Thereafter, trap Officer
has hired one matador, they sat in the matador and gone to Mansar.
After reaching at Mansar, two-three persons have checked their
matador and thereafter, they went at Paoni. ACB Officers stopped
one truck driver and thereafter, ACB Officer Mr. Hiware sat in the
cabin of said truck. Other persons who were in the matador, one of
Judgment 14 J.Cri.Appeal No.428.2005.odt
them has applied the solution on the currency note of Rs.50/-. The
said note was handed over to ACB Officer Mr. Hiware and he handed
over the same to the truck driver. The truck driver kept the same in
the chest pocket of his shirt. Thereafter, they went at Mansar Police
chowky. The truck driver had given note to the cleaner. He went
along with the cleaner at Police Help Center. Accordingly, the cleaner
has handed over the note of Rs.50/- to the person sitting at said
Police Help Center and said person has returned the amount of
Rs.30/- to the cleaner. Thereafter, he gave a signal as instructed by
the ACB Officer and the accused was caught from whom the amount
was recovered. Accordingly, the Pre-trap panchnama and Post-trap
panchnama are drawn. During his cross-examination it came on
record that the amount was paid by the cleaner to the person. As far
as the demand is concerned, there is no whisper by the said panch
witness. On the contrary, his evidence shows that after handing over
the amount of Rs.50/-, the accused No.1 has returned Rs.30/- back to
the cleaner. Thus, as far as the demand is concerned, P.W.-2 panch
witness has not stated anything about the said demand. Through this
panch witness, the prosecution has proved the Seizure Memos, Pre-
trap panchnama and Post-trap panchnama.
Judgment 15 J.Cri.Appeal No.428.2005.odt
21. P.W.-3 Nandkishor Borde is also examined, who also acted
as a panch. He also narrated the similar fact that the trap Officer has
hired one matador, thereafter, they visited the said Police Help Center
at Mansar. Their vehicle was restrained by three boys. Thereafter,
they proceeded towards Paoni. At Paoni, they were shown the
demonstration of Phenolphthalein powder and Sodiam Carbonate
solution and instructions were given to them. Thereafter, the trap
Officer communicated with one truck driver, who consented to act as
a decoy. Thereafter, the ACB Officer sat in the said truck and the
tainted note of Rs.50/- was handed over to the truck driver. Again
they came to Mansar and at Mansar near Police Help Center the truck
was restrained. Thereafter, panch No.1 Bedarkar and the cleaner
went inside the Police Help Center and handed over the said amount
to the accused. The amount was recovered from the accused No.1.
Thus, this witness has also not stated anything about the demand.
He only stated that the amount was accepted and thereafter, from
that amount, Rs.30/- was returned back to the cleaner.
22. The another material witness is the ACB Officer P.W.4-
Prakash Pawar, who reiterated the prosecution's case. As far as the
demand and acceptance is concerned, he was not along with the
panch Bedarkar and the cleaner. They reached at the spot after
Judgment 16 J.Cri.Appeal No.428.2005.odt
receipt of signal from the panch No.1 Bedarkar. As far as his
evidence is concerned, which is only to the extent of recovery of the
amount from the accused No.1.
23. P.W.-7 Vinayak Hiware/trap Officer, who lodged the
report about the said incident has also testified before the Court vide
Exhibit-37. His evidence is also similar to the evidence of P.W.-4 ACB
Officer Prakash Pawar. Admittedly, he was also not the witness as to
the demand and acceptance. His evidence shows that he
communicated with one truck driver, who agreed to work as a decoy.
Thereafter, they proceeded to Mansar road near the Police Help
Center. Three persons were sitting in Police Help Center. The truck
driver handed over the tainted note to the cleaner, and along with the
cleaner, panch No.1 went in the said Police Help Center. The cleaner
has handed over the tainted note of Rs.50/- to one person who sitting
outside the tent on the table and chair. Thereafter, remaining amount
of Rs.30/- was handed over to the said cleaner. He admitted that the
truck driver and cleaner had left the place of trap in his presence.
Admittedly, the truck driver and the cleaner, who acted as a decoy are
not examined by the prosecution to substantiate the contention.
Judgment 17 J.Cri.Appeal No.428.2005.odt
24. P.W.-5 Meghnath Damniya is serving as a Police Constable
in ACB, Nagpur. His evidence is only to the extent of handing over
the complaint to the Ramtek Police Station.
25. P.W.-6 Dilip Tiwari is also a Police Constable at ACB,
Nagpur, who acted as a carrier and handed over the articles to C.A.
26. P.W.-8 Prashant Kolwatkar was acting as a Police Station
Officer, Ramtek, who recorded the report lodged by the trap Officer.
Besides oral evidence, the prosecution placed reliance on Exhibit-45
C.A. Report.
27. On perusal of the charge framed against the accused, the
accused was prosecuted for the offence punishable under Section
13(1)(d) of the said Act. As per the allegation of the prosecution that
accused has accepted the amount of Rs.50/- as a gratification amount
from the truck driver by corrupt or illegal means by abusing his
position as a public servant and thereby committed an offence.
28. To prove the offence under Sections 13(1)(d) read with
Section 13(2) of the said Act, following are the ingredients of the said
Sections, which require to be proved :
Judgment 18 J.Cri.Appeal No.428.2005.odt
under Section 13(1)(d):
(1) the accused must be a public servant;
(2) by corrupt or illegal means, obtains for himself or any
other person any valuable thing or pecuniary advantage;
or by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or while holding office as a public
servant, obtains for any person any valuable thing or
pecuniary advantage without any public interest;
(3) to make out an offence under Section 13(1)(d), there is
no requirement that the valuable thing or pecuniary
advantage should have been received as a motive or
reward;
(4) an agreement to accept or an attempt to obtain does not
fall within Section 13(1)(d);
(5) mere acceptable of any valuable thing or pecuniary
advantage is not an offence under this provision;
(6) to make out an offence under this provision, there has to
be actual obtainment, and
(7) since the legislature has used two different expressions
namely "obtains" or "accepts", the difference between
these two have to be taken into consideration.
Judgment 19 J.Cri.Appeal No.428.2005.odt
29. After appreciating the evidence on record, as far as
demand is concerned, none of the witnesses have stated that there
was any demand by the accused. As far as the demand on the day of
trap also, the evidence of the prosecution witnesses is silent. The
ingredients of Sections 13(1)(d) of the said Act i.e. "obtains" or
"accepts" are dealt by the Hon'ble Apex Court.
30. The Constitution Bench of the Honourable Apex Court in
the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi) cited supra
held 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. This fact in issue can
be proved either by direct evidence which can be in the nature of oral
evidence or documentary evidence. The Honourable Apex Court,
while discussing expression "accept", referred the judgment in the
case of Subhash Parbat Sonvane vs. State of Gujarat , reported in
(2002)5 SCC 86, wherein it is held that mere acceptance of money
without there being any other evidence would not be sufficient for
convicting the accused under Section 13(1)(d)(i) of the said Act. In
Sections 13(1) and (b) of the said Act, the Legislature has specifically
used the words 'accepts' or 'obtains'. As against this, there is a
departure in the language used in clause (1)(d) of Section 13 and it
Judgment 20 J.Cri.Appeal No.428.2005.odt
has omitted the word 'accepts' and has emphasized the word
'obtains'. In sub clauses (i) and (ii) (iii) of Section 13(1)(d), the
emphasize is on the word "obtains". Therefore, there must be
evidence on record that accused 'obtained' for himself or for any
other person any valuable thing or pecuniary advantage by either
corrupt or illegal means or by abusing his position as a public servant
or he obtained for any person any valuable thing or pecuniary
advantage without any public interest.
While discussing the expression "accept", the Honourable
Apex Court observed that "accepts" means to take or receive with
"consenting mind". The 'consent' can be established not only by
leading evidence of prior agreement but also from the circumstances
surrounding the transaction itself without proof of such prior
agreement. If an acquaintance of a public servant in expectation and
with the hope that in future, if need be, he would be able to get some
official favour from him, voluntarily offers any gratification and if the
public servant willingly takes or receives such gratification it would
certainly amount to 'acceptance' and, therefore, it cannot be said that
as an abstract proposition of law, that without a prior demand there
cannot be 'acceptance'. The position will however, be different so far
as an offence under Section 5(1)(d) read with Section 5(2) of the
1947 Act is concerned. Under the said Sections, the prosecution has
Judgment 21 J.Cri.Appeal No.428.2005.odt
to prove that the accused 'obtained' the valuable thing or pecuniary
advantage by corrupt or illegal means or by otherwise abusing his
position as a public servant and that too without the aid of the
statutory presumption under Section 4(1) of the 1947 Act as it is
available only in respect of the offences under Section 5(1)(a) and
(b) and not under Section 5(1)(c), (d) or (e) of the 1947 Act.
According to this court, 'obtain' means to secure or gain (something)
as the result of request or effort. In case of obtainment the initiative
vests in the person who receives and in that context a demand or
request from him will be a primary requisite for an offence under
Section 5(1)(d) of the 1947 Act unlike an offence under Section 161
of the Indian Penal Code, which can be established by proof of either
'acceptance' or 'obtainment'.
31. When a trap is set for proving a charge of corruption
against a public servant, evidence about 'acceptance' has its own
importance. In the present case as noted above, the accused is not
charged of the offence punishable under Section 7 of the said Act
wherein, demand is sine qua non for establishing the charge. The learned
APP placed reliance on the judgment of the Hon'ble Apex Court in State of
A.P. Vs. P. Satyanarayana Murthy (supra), wherein the Honorable Apex
Court has held that when the evidence of the complainant not suffering
Judgment 22 J.Cri.Appeal No.428.2005.odt
from any infirmity, mere non examination of any person, held, would not
render his evidence as a suspicious. It is further held that it is not
understood by the High Court that accused not put the application form
and the money in different places. The accused did not dispute that the
application form was found in a brief case. In fact, the bribe money was
also seized. It has been clearly indicated that money was given was kept
aside and were not mixed up. The learned APP submitted that it is not a
routine case wherein the demand was there and acceptance in perusals of
the said demand, in fact here, the secret information was received by the
ACB Officer and therefore, with the help of decoy, the trap was arranged
and the accused was found accepting the amount. He further submitted
that in a Constitution Bench judgment in Neeraj Dutta vs. State (Govt.of
NCT of Delhi) cited supra, it is held that Section 13(1)(d) of the
Prevention of Corruption Act has the following ingredients which has
to be proved before bringing home the guilt of the public servant
namely :
(1) the accused was a public servant;
(2) by corrupt or illegal means, obtains for himself or any
other person any valuable thing or pecuniary advantage;
or by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or while holding office as a public
Judgment 23 J.Cri.Appeal No.428.2005.odt
servant, obtains for any person any valuable thing or
pecuniary advantage without any public interest;
(3) to make out an offence under Section 13(1)(d), there is
no requirement that the valuable thing or pecuniary
advantage should have been received as a motive or
reward;
(4) an agreement to accept or an attempt to obtain does not
fall within Section 13(1)(d);
(5) mere acceptable of any valuable thing or pecuniary
advantage is not an offence under this provision; and
(6) to make out an offence under this provision, there has to
be actual obtainment,
32. In Para 6 of the judgment by referring the case of
Subhash Parbat Sonvane vs. State of Gujarat , (supra) it was observed
that mere acceptance of money without there being any other
evidence would not be sufficient for convicting the accused under
Section 13(1)(d)(i) of the said Act. In Sections 13(1) and (b) of the
said Act, the Legislature has specifically used the words 'accepts' or
'obtains'. As against this, there is departure in the language used in
clause (1)(d) of Section 13 and it has omitted the word 'accepts' and
has emphasized the word 'obtains'. In sub clauses (i) and (ii) (iii) of
Section 13(1)(d), the emphasize is on the word "obtains". Therefore,
Judgment 24 J.Cri.Appeal No.428.2005.odt
there must be evidence on record that the accused 'obtains' for
himself or for any other person any valuable thing or pecuniary
advantage by either corrupt or illegal means or by abusing his
position as a public servant or that he obtained for any person any
valuable thing or pecuniary advantage without any public interest.
33. As far as abuse of the position is concerned, in case of
Subhash Parbat Sonvane vs. State of Gujarat (supra), in para 7, the
Honorable Apex Court held that it is enough if by abusing his position
as a public servant a man obtains for himself if any pecuniary
advantage entirely irrespective of motive or reward for showing
favour or disfavour. The Statutory presumption under section 20 of
the Act is available for the offence punishable under Section 7 or 11
or Clause (a) and (b) of sub-Section (1) of Section 13 and not for
Clause (d) of sub-Section (1) of Section 13 of the said Act.
34. While discussing the expression "accept", it was observed
in case C.K. Damodaran Nair Vs. Union of India, reported in 1997(9)
SCC, 477, that "accepts" means to take or receive with a "consenting
mind". The 'consent' can be established not only by leading evidence
of prior agreement but also from the circumstances surrounding the
transaction itself without proof of such prior agreement. If an
Judgment 25 J.Cri.Appeal No.428.2005.odt
acquaintance of a public servant in expectation and with the hope
that in future, if need be, would be able to get some official favour
from him, voluntarily offers any gratification and if the public servant
willingly takes or receives such gratification it would certainly
amount to "acceptance". Therefore, it cannot be said that as an
abstract proposition of law, that without a prior demand there cannot
be "acceptance". The position will, however, be different so far as the
offence under Section 13(1)(d) read with Section 13(2) is concerned.
Under the said Section, the prosecution has to prove that the accused
'obtained' the valuable thing or pecuniary advantage by corrupt or
illegal means or by abusing his position as a public servant and that
too without the aid of the statutory presumption under Section 20 of
the said Act as it is available only in respect of offences under Section
7 and 11 and not under Section 13(1)(d) of the said Act. The
Honorable Apex Court expressed 'obtain' means to secure or gain
(something) as a result of request or effort. In case of obtainment the
initiative vests in the person who receives and in that context a
demand or request from him will be a primary requisite for an
offence under Section 5(1)(d) of the 1947 Act unlike an offence
under Section 161 of the Indian Penal Code, which can be established
by proof of either 'acceptance' or 'obtainment'.
Judgment 26 J.Cri.Appeal No.428.2005.odt
35. In the present case, admittedly, the prosecution has not
come with the case of a demand and acceptance, but it is the case of
the obtainment by misusing the position. In case of obtainment the
offer emanates from the public servant that he makes a demand and
the bribe-giver accept the offer and tenders the demanded
gratification which in turn is received by the public servant. Thus, in
case of obtainment, there is a prior demand or illegal gratification by
a public servant and in such a case also both the demand and receipt
of illegal gratification has to be proved. This act of a public servant is
an offence punishable under Section 13(1)(d)(i) and (ii) and
therefore, a prior demand by a public servant is a sine qua non for an
offence under Section 13(1)(d)(i)(ii) of the said Act.
36. Thus in view of the observation of the Honorable Apex
Court in the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi)
cited supra, even for the offence punishable under Section 13(1)(d)
(i)(ii) of the said Act, a prior demand by the public servant is sine
qua non for an offence. The Honorable Apex Court further referred
the judgment of B. Jayaraj Vs. State of A.P., reported in (2014) 13
SCC 55, P. Satyanarayana Murthy Vs. State of A.P., reported in (2015)
10 SCC 152 and Kishan Chand Mangal Vs. State of Rajasthan ,
reported in (1982) 3 SCC 466 and it is held that if there is a demand
Judgment 27 J.Cri.Appeal No.428.2005.odt
followed by receipt by the public servant the act of obtainment under
Section 13(1)(d)(1)(ii) is complete. It is then not necessary to prove
motive or reward as the same is for him to Section 13(1)(d)(i)(ii) of
the said Act, therefore Section 20 of the said Act does not pertain to
legal presumption to be raised for an offence under Section 13(1)(d)
(i)(ii) of the said Act.
37. In the light of the above observation, a proof of demand
is a sine qua non, for convicting the accused in such a cases, it cannot
be said that the prosecution has been successful in proving its case
beyond reasonable doubts. As observed earlier that in view of the
judgment of the Constitution Bench the Honorable Apex Court in
Neeraj Dutta vs. State (Govt.of NCT of Delhi) cited supra, the proof
of demand is a sine qua non to prove the offence punishable under
Section 13(1)(d) also. The learned Senior Counsel for the accused
placed reliance on catena of decisions wherein also it is held that
proof of demand is a sine qua non for proving the offence punishable
under Section 7 as well as 13(1)(d) of the said Act.
38. As observed earlier that prior demand of the accused is
not proved by the prosecution, doubt is created as to the demand and
acceptance. The material witnesses are the truck driver and the
Judgment 28 J.Cri.Appeal No.428.2005.odt
cleaner and the three boys who restrained the vehicle, they are not
examined by the prosecution. The sanction accorded is also not a
valid sanction and it is without application of mind.
39. In the light of the above well settled legal position is that
if the evidence is appreciated, there is no dispute as to the fact that
the prosecution is under obligation to prove the 'demand' as well as
the 'acceptance'. If the entire evidence is appreciated, admittedly,
there is no evidence as to the demand as the panch witness i.e. P.W.-2
Vasant Bedarkar is completely silent about the demand by the
accused and in pursuance of the demand, there was an acceptance.
As the entire case of the prosecution depends upon the acceptance of
the amount, but there is no evidence that the amount was demanded
by the accused and in perusals of the said demand, the amount was
handed over. Admittedly, the word "gratification" is not defined in the
said Act. Hence it must be understood in its literal meaning. In the
Oxford Advanced Learner's Dictionary of Current English, the work
"gratification" is shown to have the meaning "to give pleasure or
satisfaction to". The word "gratification" is used to denote acceptance
of something to the pleasure or satisfaction of the recipient. If the
money paid is not for personal satisfaction or pleasure of the
recipient it is not the gratification in the sense it is used in the
Judgment 29 J.Cri.Appeal No.428.2005.odt
section. In other words unless the prosecution proves that money
paid was not towards any lawful collection or legal remuneration the
Court cannot take recourse to the presumption of law. Though the
Court is not precluded from drawing appropriate presumption of fact
as envisaged in Section 114 of the Evidence Act.
40. In the case of State of Maharashtra vs. Rashid B.Mulani,
reported in (2006) 1 SCC 407, wherein it is held that a fact is said to
be proved when its existence is directly established or when upon the
material before it the Court finds its existence to be so probable that
a reasonable man would act on the supposition that it exists. Unless
therefore, the explanation is supported by proof, the presumption
created by the provision cannot be said to be rebutted. Something
more than raising a reasonable probability, is required for rebutting a
presumption of law. Though, it is well-settled that the accused is not
required to establish his explanation by the strict proof but he can
discharge it on the basis of preponderance of probability.
41. In the present case, as noted above, the evidence as to
the demand of illegal gratification is not satisfactory. The evidence
shows that after handing over the tainted amount, the accused has
returned the amount of Rs.30/-, which is not taken into consideration
Judgment 30 J.Cri.Appeal No.428.2005.odt
either by the ACB Officer or by the Sanctioning Authority while
according the sanction. Thus, there is no proof of demand which is a
sine qua none for convicting the accused in such cases.
42. As observed earlier that prior demand by the accused is
not proved by the prosecution, a doubt is created as to the demand of
the amount as an independent witness i.e. truck driver and cleaner or
the three boys are not examined. I have already observed that
principles for according the sanctions are also not taken into
consideration. The sanctioning authority expressly admitted that she
has not prepared the sanction order, but she has accorded the
sanction on the basis of draft sanction order, which was prepared by
ACB Office.
43. Thus, keeping in mind all the relevant facts and material
and the evidence on record and the fact that entire exercise carried
out by the Sanctioning Authority is without application of mind. The
evidence as to the demand and acceptance is also not satisfactory. In
view of that, the appeal deserves to be allowed and, therefore, I
proceed to pass following order :
ORDER
(1) The criminal appeal is allowed.
Judgment 31 J.Cri.Appeal No.428.2005.odt (2) The judgment and order of conviction and sentence dated 27.07.2005 passed by learned Judge, Special Court, Nagpur in Special (ACB) Case No.15/1998 convicting and sentencing the accused is hereby quashed and set aside.
(3) The accused is acquitted of offences for which he was charged and convicted.
The appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.) Kirtak Signed by: Mr. B.J. Kirtak Designation: PA To Honourable Judge Date: 07/05/2024 14:53:57