Dilip Thakhre vs State Of Maharashtra

Heard.

Rule. Rule is made returnable forthwith. Heard finally with consent of learned counsel for the respective parties.

The applicant has challenged the judgment and order dated 25.07.2011 passed by the learned Additional Sessions Judge and Special Judge, Washim in Special A.C. Case No.01 of 2004, thereby convicting the appellant for the offence punishable under Sections 7 and 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “P.C. Act of 1988).

The appellant/accused was working as an Assistant Public Prosecutor in the Court of Judicial Magistrate First Class at Washim. The complainant Baban Ingole and others were prosecuted in the said case. While the said case was pending, the accused/appellant, who is an Assistant Public Prosecutor, met him outside the Court and attempted to obtain gratification by demanding money for expeditious disposal of the criminal complaint. The complainant Baban assured him to pay Rs.500/- or 700/-. However, the accused suggested him to pay Rs.1,000/- and the case would be immediately disposed of. The complainant Baban has lodged a complaint to Anti Corruption Bureau, Akola on 18.10.2002. The complaint was reduced into writing and the two panchas were arranged for preparing pre-trap panchnama. The shadow panch Noor Mohd. Seikhji was directed to go with Baban to the office of the accused and to deliver the amount of Rs.1,000/- to the accused. The trap was laid and the applicant/accused was caught red-handed while accepting the bribe amount of Rs.1,000/-. After completing the formalities, the prosecution witness No.3 has lodged a report with the Police Station, Washim, against the accused, on the basis of which crime was registered under Sections 7, 13(i)(d) and 13(2) of the P.C. Act of 1988. After completion of the investigation, chargesheet came to be filed.

The charges were framed under Sections 7 and 13(1)(d) of the P.C. Act of 1988. The prosecution has led evidence of four witnesses to prove its case. The learned Special Judge, Anti-Corruption Bureau, Washim, after evaluating the evidence led by the prosecution, has found the applicant guilty of offence punishable under Sections 7 and 13(2) read with Section 13(i)(d) of the P.C. Act of 1988 and directed the appellant to undergo the sentence of six months and to pay fine of Rs.1,000/- for Section 7 and found the respondent guilty under Section 13 of the Prevention of Corruption Act, 1988 and to pay fine of Rs. 2,000/-.

The learned counsel for the appellant, Mr. Gaikwad submits that the complainant Baban had expired and therefore, the prosecution could not examine the complainant Baban. Thus, the demand itself could not be proved by the prosecution. Since the demand itself could not be proved by the prosecution beyond doubt, the prosecution has miserably failed to make up a case for demand of illegal gratification at the behest of the complainant. The alleged demand could not have been proved by a shadow panch. The shadow panch also did not support the prosecution case. As no demand was proved, the presumption under Section 20 would not come into play and failure on the part of the prosecution to prove demand for illegal gratification, Section 13 also cannot be said to be proved against the appellant. The mere acceptance of an illegal gratification without the demand being proved is held to be bad in law. The learned counsel for the appellant relied on a judgment of the Hon’ble Supreme Court in the case of B. Jayaraj ..vs.. State of A.P., reported in (2014)5 SCC (Cri.) 543 to buttress his submission that the demand of illegal gratification is sine qua non to constitute the offence and mere recovery of the currency notes cannot constitute the offence under Section 7, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. The learned counsel further submits that as far as the presumption permissible to be drawn under Section 20 of the P.C. Act of 1988, the same can be drawn only for the offence under Section 7 and not for the offence under Section 13(1)(d). The proof of acceptance of illegal gratification that a presumption can be drawn under Section 20 of the P.C. Act of 1988, can follow only if there is a proof of demand. He further submits that as the same is lacking in the present case, the primary facts on the basis of which the legal presumption under Section 20, can be drawn cannot by itself then prove the case against the appellant. The impugned judgment ignoring such a vital aspect of the matter is therefore illegal, perverse and liable to be set aside.

Mr. Gaikwad, learned counsel for the appellant further relied upon the testimony of PW-2 Kalyanrao Deshpande, wherein he has categorically admitted that he has received a draft sanction order. He further relied upon the discrepancy in the date on which the initial demand was made by the accused from the complainant, which is shown to be 18.10.2002, whereas the complaint made by the complainant shows that the initial demand was made on 16.10.2002. The impugned order, ignoring such vital aspects of the matter, which renders the sanction order invalid, is therefore liable to be quashed and set aside. The learned counsel further submits that the sanction was granted by the sanctioning authority mechanically, without being aware of the facts of the present case. The accused was appointed by Directorate of Prosecution and not by the Minister or Home Department. The Director of Prosecution is also the only removing authority. In the absence of any sanction from the appointing and removing authority, the sanction is vitiated.

The learned counsel for the appellant, Mr. Gaikwad, further submits that the complainant had earlier transactions with Narendra Barde, a shopkeeper of Seeds and Fertilizers at Washim, and the testimony of the Investigating Officer itself would establish the probable defence taken by the accused/appellant that the money accepted by the applicant/accused was the amount to be given to Narendra Barde for selling drip irrigation articles on credit. The investigating officer had also corroborated such defence taken by the appellant. Thus, the amount handed over to the appellant, was not proved beyond doubt to be the bribe amount. Thus, the prosecution story that the aforesaid amount was paid as a bribe amount is itself brought into the category of doubtful evidence. The payment of such illegal gratification itself is not established. Hence, the presumption under Section 20 of the P.C. Act of 1988 could not be made applicable. Hence, the impugned judgment relying upon such weak piece of evidence convicting the appellant under Sections 7 and 13 of the P.C. Act of 1988 is, therefore, liable to be quashed and set aside.

The learned A.P.P., on the other hand, submits that the prosecution has been able to establish the case beyond doubt, even though the complainant has expired. The shadow panch has supported the case of the prosecution. The sanctioning authority has also given the details of the sanction order, which reflects the application of mind on the part of the sanctioning authority in granting the sanction to prosecute the appellant for the offence punishable under Sections 7 and 13(2) read with Section 13(i)(d) of the P.C. Act of 1988.

The learned A.P.P. further relied upon the testimony of the investigating officer to submit that the prosecution has been able to successfully establish not only the demand, but also the acceptance of the illegal gratification by the accused. The observations of the learned trial Court, so far as the plea of sanction is concerned, is well reasoned and cannot be faulted with. No case is made out for interference of this Court for quashing and setting aside of a well reasoned judgment. The conviction of the appellant thus needs to be maintained, and the appeal, therefore, needs to be rejected.

I have gone through the impugned judgment and order dated 25.07.2011. The perusal of the impugned judgment shows that much reliance has been placed upon the testimony of the PW-1 Noor Mohd. Seikhji. Perusal of the testimony of PW-1, shadow panch, Noor Mohd. Seikhji would show that the complaint made by the complainant deceased Baban was not verified. Since the complainant expired during the pendency of the trial and there is no evidence pertaining to the demand of bribe either on 18.10.2002 or 16.10.2002. There is no definite reason stated by the shadow panch for which the appellant has made alleged demand of illegal gratification. There were two other maternal uncles who were also accused along with the complainant in Criminal Case No.138 of 1999. However, they were not examined by the prosecution in the absence of deposition of PW-1, who already stood expired on that day.

Due to the death of the complainant, the prosecution was left only with the unverified complaint and no substantive evidence as regards demand. The testimony of shadow panch, PW-1, Noor Mohd. Seikhji, can at the most be said to be throwing light on the acceptance of the illegal gratification by the accused/appellant. However, since the complainant himself has expired and the complaint itself was not verified, the alleged demand made by the appellant/accused for receiving an illegal gratification of Rs.1,000/-itself is not established beyond reasonable doubt. The prosecution has failed to prove the demand made by the appellant/accused, hence the offence under Section 7 of the P.C. Act of 1988 cannot be said to be made out.

The Hon’ble Supreme Court in the case of B. Jayaraj ..vs.. State of A.P. (supra) has observed thus :-

Thus, from the above observations of the judgment of the Hon’ble Supreme Court in the case of B. Jayaraj ..vs.. State of A.P. (supra), it could be easily gathered that unless the demand is proved beyond all reasonable doubt by the prosecution, the presumption under Section 20 cannot be said to be made available for the prosecution. In the present case also, since the complainant has expired and the complaint was not verified and the shadow panch was only a witness to the acceptance and not the demand, the prosecution miserably failed to prove the demand. The conviction of the appellant under Section 7, thus, cannot be sustained and the same needs to be quashed and set aside.

In so far as the offence under Section 13(i)(d) is concerned, the accused has raised a probable defence that the amount of Rs.1,000/- was paid towards the transaction of purchase of some articles from the shop of one Narendra Barde. The said explanation was given by the appellant in his statement under Section 313 Cr.P.C. The suggestion was also given to the investigating officer as to whether he has recorded the statement of Narendra Barde. The investigating officer, PW-3 Yadavrao Damu Patil, in his cross-examination, in paragraph 17, has clearly admitted that he had recorded the statement of Narendra and that Narendra had stated that on 13.01.2002, he had sold articles of drip irrigation on credit and that in the said statement, there was a dispute of Narendra with the complainant in the presence of the accused and there the complainant had assured to pay an amount for purchasing of the article within 15 to 20 days and if he does not repay the said amount to Narendra Barde, then the same will be repaid to the accused.

Thus, the probable defence taken by the accused that there was a monetary transaction between the complainant and one Narendra Barde, is well supported by the Investigating Officer who has categorically admitted to having recorded the statement of the said witness which brings the case of the accused within the realm of preponderance of probability, thereby demolishing the second charge of acceptance of illegal gratification against him.

As stated earlier, in view of the observations made by the Hon’ble Supreme Court in the case of B. Jayaraj ..vs.. State of A.P. (supra) mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 of the P.C. Act of 1988. In so far as the offence under Section 13(i)(d) is concerned, as in the absence of any proof of demand for 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 established.

The Hon’ble Supreme Court has also held that it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the P.C. Act of 1988 that such illegal gratification was received for doing or forbearing to do any official act. The proof of acceptance of illegal gratification can follow only if there is proof of demand. The demand is also not proved in the present case. The primary facts on the basis of which the legal presumption under Section 20 can be drawn is wholly absent even in the present case.

Thus, taking into consideration the evidence led by the prosecution, it can safely be concluded that the prosecution has miserably failed to establish its case beyond reasonable doubt. The impugned judgment passed by the learned Special Judge convicting the appellant, appears to have been based upon the surmises and conjectures, which cannot be upheld and therefore, the appellant has made out a case for interference of this Court under its appellate jurisdiction. Hence, I am inclined to pass the following order:-