Bombay High Court
Prashant S/O Shankar Chatreshwar vs The State Of Maharashtra, Through Dy. ... on 9 October, 2023
2023:BHC-NAG:14989
Judgment
117 apeals444 & 448.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.444 OF 2014
AND
CRIMINAL APPEAL NO.448 OF 2014
CRIMINAL APPEAL NO.444 OF 2014
Prabhat s/o Ram Ambhurkar,
aged about 56 years,
occupation service at district T.B.
Hospital, Chandrapur.
r/o Jeshtha Apartments, Parsodi
Ring Road, Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Deputy Superintendent of
Police, Anti Corruption Bureau,
Chandrapur. ..... Respondent.
=====================================
Shri Prakash Naidu, Counsel & Shri J.D.Bastian, Adv. for the Appellant.
Shri A.M.Kadukar, Additional Public Prosecutor for the State.
=====================================
CRIMINAL APPEAL NO.448 OF 2014
Prashant s/o Shankar Chatreshwar,
aged about 42 years, occupation service,
r/o Babupeth, ward No.2,
Chandrapur, tahsil and district Chandrapur. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through its Dy.Superintendent of
Police, Anti Corruption Bureau,
Chandrapur, taluka and district Chandrapur. ..... Respondent.
=====================================
Shri A.K.Waghmare, Counsel for the Appellant.
Shri A.M.Kadukar, Additional Public Prosecutor for the State.
=====================================
.....2/-
Judgment
117 apeals444 & 448.14
2
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 09/08/2023
PRONOUNCED ON : 09/10/2023
COMMON JUDGMENT
1. These two appeals are heard together and
disposed of by this common judgment since these appeals
arise out of the same judgment and order of conviction
and sentence dated 21.7.2014 passed by learned Special
Judge, Chandrapur (learned Judge of the trial court) in
Special ACB Case No.10/2008.
2. By the said judgment and order of conviction,
appellant Prabhat s/o Ram Ambhulkar is convicted for
offence punishable under Section 7 of the Prevention of
Corruption Act, 1988 (of the said Act) and sentenced him
to suffer rigorous imprisonment for one year and to pay
fine Rs.500/-, in default, to suffer rigorous imprisonment
for three months.
Appellant Prabhat s/o Ram Ambhulkar, is also
convicted for offence punishable under Section 13(1)(d)
read with Section 13(2) of the said Act and sentenced him
.....3/-
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117 apeals444 & 448.14
3
to suffer rigorous imprisonment for two years and to pay
fine Rs.1000/-, in default, to suffer rigorous imprisonment
for six months.
Appellant Prashant s/o Shankar Chatreshwar, is
convicted for offence punishable under Section 12 of the
said Act and sentenced him to suffer rigorous
imprisonment for one year and to pay fine Rs.500/-, in
default, to suffer rigorous imprisonment for three months.
3. Criminal Appeal No.444/2014 is filed by Prabhat
s/o Ram Ambhulkar, accused No.1. Whereas, Criminal
Appeal No.448/2014 is filed by Prashant s/o Shankar
Chatreshwar, accused No.2.
4. In this judgment, the appellants (the accused
persons) will be referred to by their original positions in
charge.
5. The brief facts leading to the above appeals are
as follows:
.....4/-
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117 apeals444 & 448.14
4
Dr.Prakash Shankar Ramteke (complainant) was
serving as medical officer with the District T.B. Hospital at
Chandrapur since 18.6.2006 on monthly salary of
Rs.22,600/- and was getting Rs.2500/- towards travelling
fuel allowances. Every month, he used to submit bills of the
said allowances for sanction to the said hospital. Accused
No.1 was the authority to sanction the bills and was serving
as District Tuberculosis Officer. Accused No.2 was serving as
Senior T.B. Supervisor at the said hospital. As per
allegations of the complainant, accused No.1 was not paying
him amount towards travelling allowance and used to obtain
his signatures on the said bills through accused No.2 and
was keeping the said amount with him. In the month of
November 2006, the complainant submitted his bills towards
the said allowances for the months May, June, and
September 2006 for sanction. Instead of sanctioning the
bills, accused No.1 sanctioned the bill for the month of
November 2006 and the complainant had received
Rs.2500/- towards the bill. As accused No.1 did not
received the amount from the complainant, on 14.12.2006
.....5/-
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117 apeals444 & 448.14
5
the complainant was called by accused No.1 in his chamber
and demanded Rs.2500/- and informed the complainant that
unless amount Rs.2500/- is paid to him, he will not sanction
the other bills. The complainant was further told that the
said amount should be paid till the noon of 15.12.2006. As
the complainant was not ready to pay the said amount, he
approached the office of the Anti Corruption Bureau,
Chandrapur (the bureau) on 15.12.2006 and lodged report.
After receipt of the report, officer of the bureau called two
panchas. The complainant narrated his grievance to the
panchas and the panchas read the complaint. The
complainant produced five currency notes of Rs.500 as
gratification amount to officers of the bureau. The
demonstration as to use and characteristics of
phenolphthalein powder and sodium carbonate was shown.
The said solution was applied on the gratification amount
and was kept in the shirt pocket of the complainant. Some
necessary instructions were given to the complainant and
both the panchas. The complainant was instructed to hand
.....6/-
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117 apeals444 & 448.14
6
over the amount only on demand. Accordingly, the pre-trap
panchanama was drawn.
6. After the pre-trap panchanama, the complainant
along with the panchas and raiding party members went to
the office of accused No.1. The complainant along with
pancha No.1 entered in the said hospital. Pancha No.1
obtained OPD Card and went along with the complainant
towards room No.9. Accused No.1 was busy in a meeting
and, therefore, the complainant along with pancha No.1 was
waiting outside room No.9. Accused No.1 came near to the
door and the complainant communicated with him. Accused
No.1 told the complainant to wait in room No.2 and,
thereafter, accused No.2 came there and the complainant
handed over the amount to accused No.2. Accused No.2
accepted the amount and, thereafter, the raiding party
members came there and accused No.2 was caught.
Subsequently, accused No.1 was also arrested. Accused
No.2 explained that he had accepted the amount for accused
No.1. The right hand fingers of accused No.2 were
examined in the solution and colour of the solution was
.....7/-
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117 apeals444 & 448.14
7
changed. The amount was seized. Accordingly, post-trap
panchanama was drawn. The officer of the bureau lodged
report about the said incident and seized relevant
documents and a sanction was obtained to prosecute the
accused persons. After completion of investigation,
chargesheet was filed against the accused persons.
7. During trial, the prosecution examined in all five
witnesses; i.e. Prakash Shankar Ramteke (PW1) vide
Exhibit-13, the complainant; Mahadeo Bhikaji Duryodhan
(PW2) vide Exhibit-36, shadow pancha; Dr.Vipin Ramgopal
Sharma (PW3), vide Exhibit-42, the sanctioning authority for
accused No.2; Shriram Mahadeorao Todase (PW4) vide
Exhibit-47, the Investigating Officer; and Subhashchandra
Tatyasaheb Magar (PW5) vide Exhibit-61, the sanctioning
authority for accused No.1.
8. Besides the oral evidence, the prosecution relied
upon complaint (Exhibit-14); personal search panchanama
of the complainant after trap (Exhibit-15); seizure memo
(Exhibit-16); letter by the complainant for exemption
.....8/-
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8
(Articles-C to G); letters by the complainant requesting for
not taking action against him (Exhibits-31 and 34); pre-trap
panchanama (Exhibit-37); seizure memos (Exhibits-38 and
39); post-trap panchanama (Exhibit-40); sanction order
(Exhibits-43 and 62); show cause notice to accused No.2
(Exhibit-44), explanation by accused No.2 to the sanctioning
authority (Exhibit-45); complaint by investigating officer
PW4 Shriram Todase (Exhibit-51); letter to Chemical
Analyzer (Exhibit-54).
9. After considering the evidence adduced during
the trial, learned Judge of the trial court held that the
accused persons are guilty and convicted and sentenced
them as the aforesaid.
10. I have heard learned counsel Shri M.B.Naidu for
accused No.1, learned counsel Shri A.K.Waghmare for
accused No.2, and learned Additional Public Prosecutor Shri
A.M.Kadukar for the respondent/State.
11. Learned counsel for the accused persons
submitted their written submissions as well as their oral
.....9/-
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117 apeals444 & 448.14
9
submissions. It is submitted that the judgment and order of
conviction impugned is not in accordance with law. Learned
Judge of the trial court had not considered that complainant
PW1 Dr.Prakash Ramteke was not punctual in his work and
filed various applications for exemption whenever he was
deputed for training and, therefore, show cause notice was
issued to him and he requested not to take action against
him. Accused No.1 was superior to the complainant. The
complainant was apprehending that action would be taken
against him and, therefore, this false complaint is lodged. It
is further submitted that there was no valid sanction and the
prosecution also failed to prove demand and acceptance of
the bribe. It is submitted that accused No.2 was not aware
that amount handed over to him is a bribe amount. The
evidence of shadow pancha PW2 Mahadeo Duryodhan shows
that there was no communication between the complainant
and accused No.1. In fact, the demand and acceptance are
not proved. The entire prosecution case fails when the
demand is not proved. Mere recovery of the amount is not
sufficient to prove charges against the accused persons.
.....10/-
Judgment
117 apeals444 & 448.14
10
12. In support of their contentions, learned counsel
appearing for the accused persons placed reliance on
following decisions:
1.B.Jayaraj vs. State of Andhra Pradesh1;
2.C.Sukumaran vs. State of Kerala2;
3.Dattatraya s/o Rajaram Trhaokar vs. The State
of Maharashtra3;
4.Gajanan s/o Lobhaji Dahale vs. The State of
Mah., thr.Anti Corruption Bureau, Yavatmal4;
5.Chandrasen s/o Kisanrao Chauhan vs. State of
Mah. and anr5;
6.State of Maharashtra vs. Shivram Bhikaji
Pawar anr6;
7.Arjun Bajirao Kale vs. State of Maharashtra7;
8. The State of Maharashtra vs. Ashok Tukaram
Gavai and anr8;
9.Jaysing Nayrana Bidgar vs. The State of
Maharashtra9, and
1 (2014)13 SCC 55
2 2015(1) Bom.CR (Cri) 635
3 2017 ALL MR (Cri) 4184
4 2017(5) Mh.L.J. (Cri.) 723
5 Criminal Appeal No.104/1999 decided by this court on 4.3.2011
6 Criminal Appeal No.11/2000 decided on 17.2.2011 by this court.
7 2009 ALL MR (Cri) 85
8 2012 ALL MR (Cri) 2894
9 2016 ALL MR (Cri) 2079
.....11/-
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117 apeals444 & 448.14
11
10.Mr.Khushalchand Yashwant Gaikwad vs. The
State of Maharashtra10.
13. Per contra, learned Additional Public Prosecutor
for the State submitted that the evidence of complainant
PW1 Dr.Prakash Ramteke corroborated by shadow pancha
PW2 Mahadeo Duryodhan sufficiently proves that there was
a demand and in pursuance of the said demand, the amount
was accepted by accused No.2. The sanction order is valid
and no interference is called for in the judgment.
14. Since question of validity of the sanction has
been raised as 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 and, therefore, it is not
a valid sanction.
15. On the point of valid sanction, it is submitted that
the evidence of sanctioning authority PW5 Subhashchandra
Magar, who accorded the sanction to prosecute accused
No.1, nowhere shows the application of mind.
10 2018 ALL MR (Cri) 3711
.....12/-
Judgment
117 apeals444 & 448.14
12
16. The evidence of sanctioning authority PW5
Subhashchandra Magar shows that he was working as under
Secretary, Public Health Department, Mantralaya, Mumbai.
On 14.2.2008, he received papers in Crime No.3243/2006
registered under Sections 7, 12, and 13(1)(d) read with
Section 13(2) of the said Act. He had gone through all the
documents and also called the record of arrest of accused
No.1. On the basis of the documents, he found that there
was a prima facie case for the prosecution and, therefore,
he sent the matter to the Law and Judiciary Department for
opinion. The said department had also opined that the said
case is fit for according the sanction and, thereafter, he
prepared proposal and submitted the same to the
Honourable Deputy Chief Minister to accord the sanction.
The said Honourable Minister accorded the sanction and,
thereafter, under his signature, he accorded the sanction
which is at Exhibit-62.
The cross examination of the said witness shows
that he had also received draft sanction order.
.....13/-
Judgment
117 apeals444 & 448.14
13
17. Perusal of the sanction order shows that in
paragraph No.1, designation of accused No.1 is mentioned.
In paragraph No.2, details regarding the crime are
mentioned. In paragraph Nos.3 to 5, it is mentioned that the
Government of Maharashtra, having fully examined the
material placed before it and considered all facts and
circumstances, was satisfied that there is a prima facie case
made out against the accused persons and accorded the
sanction. In a schedule, the prosecution case is mentioned.
18. Perusal of the sanction order nowhere discloses
that who has applied his mind while according the sanction.
After going through the evidence of sanctioning authority
PW5 Subhashchandra Magar, though he stated that he
applied his mind and perused the investigating papers, the
sanction order nowhere discloses that it was he who applied
his mind by perusing the investigating papers. The wordings
used in the sanction order are that the Government of
Maharashtra, having fully examined material before it, was
satisfied that there is a prima facie case made out against
the accused persons and the sanction is accorded. Perusal
.....14/-
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117 apeals444 & 448.14
14
of the sanction order shows that he has not disclosed on
what basis he came to conclusion that the sanction has to
be accorded. The sanction order only shows that the
Government of Maharashtra applied its mind and accorded
the sanction. It further discloses that an opinion of the Law
and Judiciary Department was obtained. However, there is
no reference of these activities in the sanction order. The
sanction order discloses that the material was examined by
the Government of Maharashtra and satisfaction for
according of sanction was also arrived at by the Government
of Maharashtra. The sanction order does not specifically
mention name of any officer who had actually undertaken
the exercise of examining the material and recording
subjective satisfaction in this regard on behalf of the
Government of Maharashtra. It is not known as to who
applied his/her mind and by what process exactly an opinion
was formed that a prima facie case was made out for
according the sanction. The opinion of the Law and
Judiciary Department was not produced in the evidence by
the prosecution. If it would have been produced, sufficient
.....15/-
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117 apeals444 & 448.14
15
light perhaps could have been thrown on the exercise
undertaken for according of sanction of the accused persons
by the Government of Maharashtra. Admittedly, grant of
sanction is a serious exercise of power by the competent
authority. It has to be apprised of all the relevant materials
and on such materials the authority has to take a conscious
decision as to whether the facts would show the commission
of the offence under the relevant provisions. No doubt,
elaborate discussion is not required, however, the decision
making on relevant materials should be reflected in the
order.
19. Sanctioning Authority PW3 Dr.Vipin Sharma, was
examined vide Exhibit-42 to prove the sanction which is
accorded to prosecute accused No.2. His evidence shows
that he studied all the papers and issued a notice to
Prashant Chatreshwar, accused No.2, and found prima facie
case against accused No.2 and accorded the sanction.
Though he is cross examined, nothing incriminating is
brought on record. Insofar as the sanction order is
concerned, which is at Exhibit-43, in paragraph No.1 of the
.....16/-
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117 apeals444 & 448.14
16
said sanction order, designation of accused No.2 is
mentioned and in paragraph Nos.2 to 8 the entire
prosecution case is mentioned and in paragraph No.9 he
mentioned that he satisfied beyond doubt to the fact that he
is the appointing authority and granted the sanction on the
basis of statement and documents on record.
20. Perusal of the record shows that he issued the
show cause notice to accused No.2 and accused No.2
submitted his explanation which shows that he was not
aware about the amount handed over to him is a bribe
amount. In fact, application filed by complainant PW1
Dr.Prakash Ramteke for not taking action against accused
No.2 also shows that accused No.2 was not aware that the
amount handed over to him, which was to be handed over
to accused No.1, is a bribe amount. The complainant has
filed his application on 20.12.2006 whereas the sanction was
accorded on 8.10.2008. The sanctioning authority had not
considered the said aspect. The explanation submitted by
accused No.2 on issuance of show cause notice is supported
by the application filed by complainant PW1 Dr.Prakash
.....17/-
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17
Ramteke stating that accused No.2 was not aware that the
amount handed over to him is a bribe amount. Perusal of
the sanction order nowhere discloses that which documents
are considered by the sanctioning authority while according
the sanction. There is no reference in the sanction order
that which documents are considered by the sanctioning
authority.
21. Whether sanction is valid or not and when
sanction can be called as valid, the same is settled by
various decisions of the Honourable Apex Court as well as
this Court.
22. The Honourable Apex Court in the case of
Mohd.Iqbal Ahmad vs. State of Andhra Pradesh11 has held
that what Court has to see is whether or not sanctioning
authority at the time of giving sanction was aware of facts
constituting offence and applied its mind for the same and
any subsequent fact coming into existence after resolution
had been passed is wholly irrelevant. The grant of sanction
is not an idle formality or an acrimonious exercise but a
11 1979 AIR 677
.....18/-
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117 apeals444 & 448.14
18
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.
23. The Honourable Apex Court, in another decision,
in the case of CBI vs. Ashok Kumar Agrawal12 has held that
sanction lifts the bar for prosecution and, therefore, it is 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 sanctioning authority including the
FIR, disclosure statements, statements of witnesses,
recovery memos, draft chargesheet and all other relevant
material. It has been further held by the Honourable Apex
Court that the record so sent should also contain the
12 2014 Cri.L.J.930
.....19/-
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117 apeals444 & 448.14
19
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 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.
.....20/-
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117 apeals444 & 448.14
20
24. The Honourable Apex Court in the case of State
of Karnataka vs. Ameerjan13 has held that it is true that an
order of sanction should not be construed in a pedantic
manner. But, it is also well settled that the purpose for
which an order of sanction is required to be passed should
always be borne in mind. Ordinarily, the sanctioning
authority is the best person to judge as to whether the
public servant concerned should receive the protection
under the Act by refusing to accord sanction for his
prosecution or not. For the aforementioned purpose,
indisputably, application of mind on the part of the
sanctioning authority is imperative. The order granting
sanction must be demonstrative of the fact that there had
been proper application of mind on the part of the
sanctioning authority.
25. The view in the case of State of Karnataka vs.
Ameerjan cited supra is the similar view expressed by this
court in the case of Anand Murlidhar Salvi vs. State of
Maharashtra14.
13 (2007)11 SCC 273
14 2021 SCC OnLine Bom 237
.....21/-
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21
26. This court in the case of Vinod Savalaram
Kanadkhedkar vs. The State of Maharashtra15 observed that
absence of description of documents referred by sanctioning
authority and only considering the grievances made by
Complainant would show lack of application of mind by
competent authority while according sanction. The
documents other than complaint were taken into
consideration those documents should have been referred in
the sanction order. The sanction order is illegal and invalid.
27. In view of the settled principles of law, it is
crystal clear that the sanctioning authority has to apply his
own independent mind for generation of its satisfaction for
sanction. The mind of the sanctioning authority should not
be under pressure and the said authority has to apply his
own independent mind on the basis of the evidence which
came before it. An 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, the sanctioning authority is the best person
15 2016 ALL MR (Cri) 3697
.....22/-
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117 apeals444 & 448.14
22
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.
28. Thus, an application of mind on the part of
sanctioning authority is imperative. The orders granting
sanction must demonstrate that he/she should have applied
his/her mind while according sanctions.
29. After going through the evidence of sanctioning
authorities PW3 Dr.Vipin Sharma as well as PW5
Subhashchandra Magar, admittedly, the sanction order
nowhere reflects who has applied mind and which
documents are considered by the sanctioning authority and
what was the basis to come to conclusion that the sanction
is to be accorded to launch prosecution against the accused
persons.
30. Besides issue of the sanction, the prosecution
claimed that the accused persons have demanded
gratification amount and accepted the same.
.....23/-
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23
31. To prove the demand and acceptance, the
prosecution mainly placed reliance on the evidence of
complainant PW1 Dr.Prakash Ramteke and shadow pancha
PW2 Mahadev Duryodhan.
The evidence of the complainant reflects that he
was serving as medical officer with the District T.B. Hospital
at Chandrapur. Accused No.1 was his superior and serving
as a as District Tuberculosis Officer and was serving as
Senior T.B. Supervisor at the said hospital. As per
allegations of the complainant, accused No.1 is the
sanctioning authority who used to sanction travelling
allowance bills of the complainant. It is further alleged that
though accused No.1 was sanctioning bills towards travelling
allowances, he was not paying the same to the complainant
and was keeping with him. The bill for the month of
November 2006 was received by the complainant, but he
has not deposited it to accused No.1 and, therefore, accused
No.1 demanded the same by informing him that if the
amount is not paid, he will not sanction further bills and,
thereafter he approached the office of the bureau and filed
.....24/-
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24
the complaint. His evidence further discloses the procedure
carried out by the officers of the bureau prior conducting of
the raid. As far as subsequent demand is concerned, his
evidence is that he along with pancha No.1 visited the said
hospital. At the relevant time, accused No.1 was sitting in
room No.9 of the hospital and was in meeting. He shown
accused No.1 to the pancha. After seeing him, accused
No.1 came outside the room and, thereafter, he
communicated to accused No.1 that he is having some work
with him. At the relevant time, accused No.1 asked him to
wait in room No.2 and informed him that he is sending
Chatreshwar, accused No.2 and the amount should be
handed over to accused No.2. Thereafter, accused No.2
came there and he handed over the amount to accused
No.2. Thereafter, the officers of the bureau came there and
caught accused No.2 and the amount was recovered from
accused No.2.
The cross examination of complainant PW1
Dr.Prakash Ramteke shows that he was receiving petrol
allowances for visiting area which was under his jurisdiction.
.....25/-
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25
In the month of October 2006 he paid Rs.10,000/- by
cheque to accused No.1. He further admitted that prior to
two-three days of the trap, he quarreled with accused No.1
on account of refund of Rs.10,000/-. The attempts were
made that he was asked to attend the training on
26.7.2005, but he has not completed the training. After
showing the letter dated 27.7.2005, he accepted the fact
that the said letter was issued by him showing his inability
to attend the training. Another letter dated 9.5.2005 was
shown to him by which he shown his inability to attend the
meeting.
As far as the alleged incident is concerned, he
admitted that when he went to meet accused No.1 along
with pancha No.1, near about 5-6 people were present in
the meeting. He further admitted that in that meeting
accused No.2 was also present. He further admitted that as
he was suffering from mental torture, he lodged the report
against the accused persons. He specifically admitted that
he had no grievance against accused No.2. He further
admitted that when he visited to hand over the bribe money
.....26/-
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117 apeals444 & 448.14
26
to accused No1, that fellow was busy in meeting. Accused
No.2 never demanded bribe from him. He handed over the
money to accused No.2 for giving it to accused No.1.
32. To corroborate the versions of complainant PW1
Dr.Prakash Ramteke, the prosecution also examined shadow
pancha PW2 Mahadeo Duryodhan, pancha No.1.
The evidence of shadow pancha PW2 Mahadeo
Duryodhan, on the pre-trap panchanama, shows that the
complainant has orally narrated his complaint to him and,
thereafter, he produced the tainted notes. The
demonstration as to the use of the phenolphthalein powder
and the sodium carbonate was shown to them. The said
solution was applied on the notes and the said notes were
kept in shirt pocket of the complainant. Accordingly, the
pre-trap panchanama was drawn. After the pre-trap
panchanama, he along with the complainant and the other
raiding party members proceeded towards the said hospital
and, thereafter, he along with the complainant entered into
the hospital. A message was given by the complainant to
.....27/-
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27
accused No.1 and also about the money. His evidence
shows that after entering into the hospital, he obtained OPD
Card and the complainant has given him prescription of
medicine and, thereafter, the complainant informed him that
he will confirm whether his superior is present and till then
he shall take medicines. Meanwhile, the complainant went
to see his superior and after some time informed that his
superior told him to hand over the amount to his assistant in
room No.2 and they have to go in room No.2 and,
thereafter, they went to room No.2 wherein one person
came there and the complainant handed over the same
amount to the said person.
33. Thus, if the evidence of shadow pancha PW2
Mahadeo Duryodhan is taken into consideration, he has
narrated completely different story which shows that he was
not accompanied the complainant when he met accused
No.1. He has not witnessed any communication between
accused No.1 and complainant PW1 Dr.Prakash Ramteke.
During cross examination, he specifically admitted that the
complainant met him in the corridor after verifying
.....28/-
Judgment
117 apeals444 & 448.14
28
availability of accused No.1. At that time, the complainant
told him that he has given the message and accused No.1
told him that he should pay the amount to his assistant as
he is in meeting. This evidence clearly shows that there was
no demand in presence of shadow pancha PW2 Mahadeo
Duryodhan and there was no communication between the
complainant and accused No.1 in presence of pancha No.1.
34. Complainant PW1 Dr.Prakash Ramteke has filed
an application on 20.12.2006 requesting to the Deputy
Director of Tuberculosis and and BCG, Mumbai for not
initiating action against accused No.2. The said application
is at Exhibit-31. Recital of the said application shows that
on 15.12.2006 accused No.1 has demanded the amount
from him and, therefore, he approached the office of the
bureau. When he went to hand over the amount to accused
No1, accused No.1 was busy in a meeting and, therefore, he
called accused No.2 and handed over the same amount to
accused No.2 to hand over the same to accused No.1. This
communication itself shows that there was no
communication between the complainant and accused No.1
.....29/-
Judgment
117 apeals444 & 448.14
29
as far as the demand on 15.12.2006 is concerned. The
same shows that when the complainant went in the hospital,
after lodging the complaint with the office of the bureau to
hand over the amount, he could not meet accused No.1 and
accused No.2 was not aware that the amount is a
gratification amount. Exhibit-34 is another application which
also shows the similar contention that there was no
communication between accused No.1 and accused No.2.
However, the complainant merely handed over the amount
to accused No.2 without any demand.
35. As far as the first demand is concerned, except
the bare statement of complainant PW1 Dr.Prakash
Ramteke, no other evidence is on record. The investigating
officer has not verified the said demand before laying the
trap. Thus, the earlier demand is not proved by the
prosecution and as far as the demand on the day of the trap
is concerned, the evidence of pancha and Exhibits-31 and 34
show that there was no demand by any of accused persons.
However, the complainant handed over the said amount and
accused No.2 accepted the same without any knowledge.
.....30/-
Judgment
117 apeals444 & 448.14
30
This evidence is to be appreciated in the light of the
admission given by the complainant that there was previous
quarrel between him and accused No.1 as well as he was fed
up with harassment at the hands of accused No.1, he lodged
the complaint. Admittedly, there is absolutely no cogent and
reliable evidence as far as the demand is concerned.
36. Learned counsel appearing for the accused
persons rightly placed reliance on the decision of the
Honourable Apex Court in the case of B.Jayaraj vs. State of
Andhra Pradesh cited supra wherein it is held that demand
of illegal gratification is sine qua non to constitute the said
offence and mere recovery of currency notes cannot
constitute the offence under Section 7 unless it is proved
beyond all reasonable doubt that accused voluntarily
accepted money knowing it to be a bribe. The said ratio is
laid down in the case of C.Sukumaran vs. State of Kerala
cited supra.
.....31/-
Judgment
117 apeals444 & 448.14
31
37. There is variance in the evidence of complainant
PW1 Dr.Prakash Ramteke and shadow pancha PW2 Mahadeo
Duryodhan.
As per the evidence of the complainant, when he
approached accused No.1, along with pancha No.1, accused
No.1 was in a meeting and he came out of the meeting
room and communicated with him and demanded the
amount. Whereas, as per the evidence of pancha No.2, he
was not present along with the complainant when he met
accused No.1.
38. It is held by the Honourable Apex Court in the
case of Panalal Damodar Rathi vs. State of Maharashtra 16
that there could be no doubt that the evidence of the
complainant should be corroborated in material particulars.
After introduction of Section 165-A of the Indian Penal Code
making the person who offers bribe guilty of abetment of
bribery, the complainant cannot be placed on any better
footing than that of an accomplice and corroboration in
material particulars connecting the accused with the crime
16 (1979)4 SCC 526
.....32/-
Judgment
117 apeals444 & 448.14
32
has to be insisted upon. The evidence of the complainant
regarding the conversation between him and the accused
has been set out earlier. As the entire case of the
prosecution depends upon the acceptance of the evidence
relating to the conversation between the complainant and
the appellant during which the appellant demanded the
money and directed payment to the second accused which
was accepted by the complainant, we will have to see
whether this part of the evidence of the complainant has
been corroborated. The Honourable Apex Court held that it
should corroborate to each other.
39. The same aspect is considered by the Honourable
Apex Court in the case of Mukhtiar Singh (since deceased)
through his LR vs. State of Punjab17 wherein also it is held
that statement of complainant and shadow witness in
isolation that the accused had enquired as to whether
money had been brought or not, can by no mean constitute
demand as enjoined in law. Such a stray query ipso facto in
absence of any other cogent and persuasive evidence on
17 2017 SCC ONLine SC 742
.....33/-
Judgment
117 apeals444 & 448.14
33
record cannot amount to a demand to be a constituent of
the offence.
40. In the case of M.O.Shamsudhin vs. State of
Kerala18, it has been held that word " accomplice" is not
defined in the Evidence Act. It is used in its ordinary sense,
which means and signifies a guilty partner or associate in
crime. Reading Section 133 and Illustration (b) to Section
114 of the Evidence Act together the courts in India have
held that while it is not illegal to act upon the
uncorroborated testimony of the accomplice the rule of
prudence so universally followed has to amount to rule of
law that it is unsafe to act on the evidence of an accomplice
unless it is corroborated in material aspects so as to
implicate the accused.
41. In the case of Bhiva Doulu Patil vs. State of
Maharashtra19 wherein it has been held that the combine
effect of Sections 133 and 114, illustration (b) may be
stated as follows:
18 (1995)3 SCC 351
19 1963 Mh.L.J. (SC) 273
.....34/-
Judgment
117 apeals444 & 448.14
34
"According to the former, which is a rule of law,
an accomplice is competent to give evidence and
according to the latter which is a rule of practice
it is almost always unsafe to convict upon his
testimony alone. Therefore though the conviction
of an accused on the testimony of an accomplice
cannot be said to be illegal yet the Courts will, as
a matter of practice, not accept the evidence of
such a witness without corroboration in material
particulars."
42. Thus, in catena of decisions, it is held that
complainant himself is in the nature of accomplice and his
story prima facie suspects for which corroboration in
material particulars is necessary.
43. In the present cases, admittedly, there is a
variance in the evidence of complainant PW1 Dr.Prakash
Ramteke and shadow pancha PW2 Mahadeo Duryodhan on
material particulars as far the communication between the
complainant and accused No.1 is concerned.
44. The evidence of investigating officer PW4
Shriram Todase is formal in nature. Admittedly, he has not
verified the demand prior to the trap. So, he is not the
witness as far as the demand is concerned.
.....35/-
Judgment
117 apeals444 & 448.14
35
45. After appreciating the evidence on record, it
reveals that as per the prosecution case, the accused
persons have demanded the amount for sanctioning bills.
The evidence shows that accused No.1 has demanded the
amount, however the communications Exhibit-31 and 34 of
complainant PW1 Dr.Prakash Ramteke itself show that there
was no communication between him and accused No.1 on
the day of the trap i.e. 15.12.2006.
The evidence of shadow pancha PW2 Mahadeo
Duryodhan also shows that he was not present when the
complainant met accused No.1.
46. Thus, the evidence of complainant PW1
Dr.Prakash Ramteke is also not helpful to prove the demand.
47. The evidence of complainant PW1 Dr.Prakash
Ramteke and shadow pancha PW2 Mahadeo Duryodhan is
not corroborating to each other on material particulars. If
this evidence is taken into consideration, in the light of the
evidence of PW2 and Exhibits-31 and 34, it sufficiently
shows that the prosecution failed to prove the demand.
.....36/-
Judgment
117 apeals444 & 448.14
36
48. In the case of The State of Maharashtra vs.
Ramrao Marotrao Khawale20 this court has held that when a
trap is set for proving the charge of corruption against a
public servant, evidence about prior demand has its own
importance. It is further held that the reason being that the
complainant is also considered to be an interested witness
or a witness who is very much interested to get his work
done from a public servant at any cost and, therefore,
whenever a public servant brings to the notice of such an
interested witness certain official difficulties, the person
interested in work may do something to tempt the public
servant to bye-pass the rules by promising him some
benefit. Since the proof of demand is sine qua non for
convicting an accused, in such cases the prosecution has to
prove charges against accused. Whereas, burden on
accused is only to show probability and he is not required to
prove facts beyond reasonable doubt.
49. The Honourable Apex Court in the case of
Mohmoodkhan Mahboobkhan Pathan vs. State of
20 2017 ALL MR (Cri) 3269
.....37/-
Judgment
117 apeals444 & 448.14
37
Maharashtra21 held that the primary condition for acting on
the legal presumption under Section 4(1) of the Act is that
the prosecution should have proved that what the accused
received was gratification. The word "gratification" is not
defined in the 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 in Section 4(1) 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 gratification in the sense it is used in
the section. In other words unless the prosecution proves
that the money paid was not towards any lawful collection or
legal remuneration the court cannot take recourse to the
presumption of law contemplated in Section 4(1) of the Act,
though the court is not precluded from drawing appropriate
presumption of fact as envisaged in Section 114 of the
Evidence Act at may stage.
21 (1997)10 SCC 600
.....38/-
Judgment
117 apeals444 & 448.14
38
50. In the case of State of Maharashtra vs. Rashid
B.Mulani22 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 standard of 'proof beyond reasonable doubt', and the
presumption under Section 4 of the Act would stand
rebutted if the explanation or defence offered and proved by
the accused is reasonable and probable.
51. It is well settled that while deciding the offence
under said Act, complainant's evidence is to be scrutinized
meticulously. There could be no doubt that the evidence of
complainant should be corroborated in material particulars.
22 (2006)1 SCC 407
.....39/-
Judgment
117 apeals444 & 448.14
39
Complainant cannot be placed on any better footings than
that of an accomplice and corroboration in material
particulars connecting accused with crime has to be insisted
upon.
52. As far as applicability of presumption is
concerned, in the decision of the constitution bench of the
Honourable Apex Court in the case of Neeraj Dutta vs.
State (Govt.of NCT of Delhi)23 it has been held that
presumption of fact with regard to the demand and
acceptance or obtainment of an illegal gratification may
be made by a court of law by way of an inference only
when the foundational facts have been proved by relevant
oral and documentary evidence and not in the absence
thereof. On the basis of the material on record, the
Court has the discretion to raise a presumption of fact
while considering whether the fact of demand has been
proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the accused
and in the absence of rebuttal presumption stands. It is
23 2023 SCC OnLine SC 280
.....40/-
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117 apeals444 & 448.14
40
further held that insofar as Section 7 of the Act is
concerned, on the proof of the facts in issue, Section 20
mandates the court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward as
mentioned in the said Section. The said presumption has
to be raised by the court as a legal presumption or a
presumption in law.
53. In the instant cases, as observed earlier, prior
demand is not proved by the prosecution and the demand
on the day of the trap is also falsified by Exhibits-31 and 34
and the evidence of shadow pancha PW2 Mahadeo
Duryodhan. It is already observed that there is no valid
sanction to prosecute the accused persons.
54. It is well settled that granting of sanction is a
solemn sacrosanct act which affords protection to the
government servants against frivolous prosecutions, 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
.....41/-
Judgment
117 apeals444 & 448.14
41
sanctioning authority to exercise powers strictly keeping
in mind all relevant facts and material and accord the
sanctions.
55. Thus, the entire exercise carried out, as far as
the sanction by sanctioning authority PW5 Subhashchandra
Magar is concerned, is in secrecy and it is not known as to
who has applied his/her mind and accorded the sanction.
The sanction order showing prima facie application of mind
is valid sanction.
56. Thus, on the ground of the sanction also, the
prosecution in the present cases fails. The evidence as to
the demand is not satisfactory and proof of demand is a sine
qua non to prove the charge. As such, as appeals deserve
to be allowed, I proceed to pass following order:
ORDER
(1) The criminal appeals are allowed. (2) The judgment and order of conviction and sentence dated 21.7.2014 passed by learned Special Judge, .....42/-
Judgment 117 apeals444 & 448.14 42 Chandrapur in Special ACB Case No.10/2008 convicting and sentencing accused No.1 and accused No.2 is hereby quashed and set aside.
(3) Accused No.1 and accused No.2 are acquitted of offences for which they were charged and sentenced.
The appeal stand disposed of.
(URMILA JOSHI-PHALKE, J.) !! BrWankhede !! Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 25/10/2023 12:20:58