AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal is directed against the impugned judgment and order dated 17.01.2013, passed by the learned Special Judge, Kelapur in Special Case No. 3/2006, convicting the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “Act”).
The prosecution case, is that on 23.05.2006 at about 9.00 a.m., Sumit Matte visited the office of the Anti-Corruption Bureau, Yavatmal, and lodged his complaint. He stated that his maternal uncle was the owner of agricultural land admeasuring 1.55 Hectares situated at Gat No. 23 at village Manki, Tahsil Wani, District Yavatmal. In the year 2005, the said land was purchased by his father, and mutation entry in that regard was effected in his father’s name on 18.12.2005. The said land was under tenancy of Sambhaji Madao Panchbhai and five others, and their names continued to appear on the 7/12 extract.
Sumit Matte further stated that proceedings for deletion of the tenants’ names were initiated before the Tahsildar, Wani, and by order dated 24.04.2006, the Tahsildar allowed the application and directed deletion of the names of the tenants. One copy of the said order was issued to Sumit Matte and another was forwarded to the appellant, who was then working as Talathi of village Manki.
It was alleged that on 17.05.2006, Sumit Matte approached the appellant for effecting deletion of the tenants’ names from the 7/12 extract and for issuance of a fresh 7/12 extract. At that time, the appellant demanded an amount of Rs.2,000/- as illegal gratification, and later reduced the demand to Rs.1,500/-, making it clear that unless the said amount was paid, the names of the tenants would not be deleted nor would the 7/12 extract be issued.
Further, on 22.05.2006 at about 12.00 noon, when Sumit Matte again met the appellant at the Tahsil Office, Wani, the appellant reiterated the demand and instructed him to bring an amount of Rs.1,500/- to his residence at Laxmi Nagar, Wani, on the following day, failing which the work would not be done. Having no alternative, Sumit Matte agreed to bring the amount on 23.05.2006. However, being unwilling to pay the bribe, he decided to approach the Anti-Corruption Bureau.
Upon verification of the complaint, a trap was arranged. The complaint was reduced into writing, read over to Sumit Matte, and signed by him. Two panch witnesses were secured and introduced to the complainant. After explaining the trap procedure, Head Constable Raut applied anthracene powder to three currency notes of Rs.500/-denomination each, totalling Rs.1,500/-. The numbers of the said notes were noted in the pre-trap panchanama. The tainted currency notes were kept in the right pocket of the pant of the complainant Sumit Matte.
The raiding party thereafter proceeded to Wani and reached there at about 4.30 p.m. On instructions, the complainant Sumit Matte and Panch No.1 went to the residence of the appellant at Laxmi Nagar at about 4.40 p.m. After the transaction, at about 5.00 p.m., the pre-arranged signal was given.
Upon entering the premises, Panch No.1 disclosed that the appellant had inquired whether the complainant had brought the money, prepared and signed a 7/12 extract after deleting the names of the tenants, and thereafter demanded the bribe amount of Rs.1,500/-. The complainant then produced the tainted currency notes, which the appellant accepted with his right hand and kept on the sofa cushion.
The appellant was immediately apprehended. On examination under ultraviolet lamp, anthracene powder was detected on the fingers of his right hand. The tainted currency notes, recovered from the sofa cushion, also showed anthracene marks, and their numbers tallied with those noted in the pre-trap panchanama. Anthracene powder was also found on the sofa cushion. The copy of the Tahsildar’s order and other relevant documents were seized. The post-trap panchanama was drawn between 5.15 p.m. and 8.30 p.m.
Thus, it is the prosecution case that the appellant, while functioning as a public servant in the capacity of Talathi, abused his official position by demanding and accepting illegal gratification of Rs.1,500/- from the complainant on 23.05.2006 for deleting the names of tenants and issuing a 7/12 extract, thereby committing offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
Crime No. 3085/2006 dated 23.05.2006 came to be registered against the appellant for the offences punishable under the provisions of the PC Act. Upon completion of the investigation, a charge-sheet was filed before the learned Special Judge, Anti-Corruption Bureau, Yavatmal. The learned trial Court thereafter framed Charge against the accused at Exh.17 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the said PC Act. The accused pleaded not guilty and claimed to be tried.
In order to bring home the guilt of the accused, the prosecution examined the following witnesses: PW-1 Sumit Padmakar Matte (Exh.30); PW-2 Hemant Narayanrao Nikam (Exh.37); PW-3 Pralhad Shankarrao Sapkal (Exh.45); PW-4 Vijay Gopinath Dhage (Exh.55); PW-5 Dildar Baldar Tadvi (Exh.71); and PW-6 Harshadeep Shriram Kambale (Exh.84).
Upon appreciation of the oral and documentary evidence adduced by the prosecution, the learned trial Court, by the impugned judgment and order dated 17.01.2013, convicted the appellant and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for one month for the offence under Section 7 of the PC Act and to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act. The learned trial Court directed both sentences to run concurrently. Hence, the appellant has preferred the present appeal.
Heard Mr. P.R. Agrawal, learned Counsel for the appellant and Mr. Amit Chutke, learned Additional Public Prosecutor for the State.
7. Submissions on behalf of the Appellant:
Learned Counsel for the appellant submitted that the impugned judgment and order of conviction is contrary to law and evidence on record and suffers from serious infirmities warranting interference by this Court.
Learned Counsel submitted on behalf of the appellant that the prosecution has failed to establish the foundational requirement of a demand for illegal gratification, which is a sine qua non for conviction under Sections 7 and 13 of the PC Act. The complainant (PW-1) himself has categorically denied any demand or acceptance of a bribe at the time of the alleged trap. Learned Counsel further submitted that the alleged demand dated 17.05.2006 does not form part of the charges framed by the Trial Court. The complainant is stated to have made a reference to a demand on 22.05.2006 but did not approach the ACB office on the same day, instead lodging the report only on 23.05.2006. Moreover, the panchas were not present when the complaint was reduced to writing and were called by the Investigating Officer only on 22.05.2006 to appear on 23.05.2006. The prosecution case, it is submitted, is not corroborated by PW-3, and the absence of contemporaneous verification of the demand is fatal to the prosecution case.
Learned Counsel invited attention to the clear admissions of PW-1 that the appellant had already prepared and delivered the 7/12 extract and that, while the appellant had gone inside the house to bring drinking water, the complainant himself placed the amount of Rs.1,500/-on the sofa without the knowledge or consent of the appellant.
It is further submitted that PW-1 admitted that no conversation took place between him and the accused prior to placing the amount on the sofa, thereby completely negating the prosecution case of demand and acceptance.
Learned Counsel contended that the alleged recovery is not from the person of the appellant but from a sofa in his house, which by itself cannot establish conscious acceptance. The presumption under Section 20 of the Act, therefore, does not arise.
The evidence of both panch witnesses, PW-3 and PW-4, is assailed on the ground that it suffers from material contradictions, omissions, and improvements. Several crucial facts deposed before the trial Court do not find mention in their police statements.
Learned Counsel further submitted that PW-3 and PW-4 admitted that the bribe amount was not sized from the appellant and that their knowledge regarding events prior to the signal was either incomplete or hearsay.
It is argued that the Investigating Officer (PW-5) has admitted that there is no mention of demand of bribe in the statement of Panch No.1 and that no station diary entry was made regarding the initial telephonic complaint, casting serious doubt on the fairness of the investigation.
Learned Counsel further submitted that the complainant himself admitted that he was annoyed and frustrated and lodged the complaint despite the mutation having already been prepared, thereby suggesting a motive for false implication.
It is submitted that mere recovery of tainted currency notes, in the absence of proof of demand and voluntary acceptance, is insufficient to sustain conviction.
Learned Counsel therefore prayed that the appeal be allowed, the impugned judgment and order of conviction be quashed and set aside, and the appellant be acquitted of all the charges. Learned Counsel for appellant relied on the judgment of Hon’ble Supreme Court in Mir Mustafa Ali Hasmi Vs. State of Andhra Pradesh, (2024) 10 SCC 489 & Mukhtiar Singh Vs. State of Punjab, (2017) 8 SCC 136.
8. Submissions on behalf of the State:
Per contra, learned Additional Public Prosecutor supported the impugned judgment and order and submitted that the learned trial Court has rightly convicted the appellant after proper appreciation of the evidence on record.
It is submitted that the initial demand of bribe by the appellant stands proved through the consistent version in the complaint and the examination-in-chief of the complainant (PW-1), which is corroborated by the panch witnesses and the Investigating Officer.
Learned Addl.P.P contended that minor contradictions or omissions in the testimony of witnesses are natural due to lapse of time and do not go to the root of the prosecution case.
It is further submitted that the presence of anthracene powder on the fingers of the appellant and on the sofa pillow, coupled with recovery of tainted currency notes from the immediate vicinity of the appellant, clearly establishes acceptance of illegal gratification.
Learned Addl.P.P. argued that the complainant turning hostile or making contradictory statements during cross-examination does not ipso facto demolish the prosecution case, particularly when other evidence on record supports the prosecution version.
It is contended that both panch witnesses have substantially supported the prosecution and have clearly stated that the accused demanded and accepted the bribe amount and kept it on the sofa.
Learned Addl.P.P further submitted that the presumption under Section 20 of the PC Act squarely applies in the present case, as recovery of tainted currency notes and positive ultraviolet test have been proved.
It is argued that the sanction for prosecution has been validly accorded by the Competent Authority (PW-6) after due application of mind and no infirmity has been brought on record to discredit the same.
Learned Addl.P.P. submitted that the defence theory of planting of money is an afterthought and is not supported by any cogent evidence. It is therefore prayed that the appeal be dismissed and the conviction and sentence imposed by the learned trial Court be confirmed.
Before proceeding to the reasoning, analysis, and final conclusions, this Court finds it necessary to first examine and assess the evidence presented by the prosecution.
PW-1 Sumit Padmakar Matte, the complainant, though in his examination-in-chief attempted to support the prosecution version regarding alleged demand of bribe, made material admissions in his cross-examination which strike at the very root of the prosecution case.
PW-1 categorically denied that the appellant demanded the bribe amount at the time of the trap or that the appellant accepted the tainted currency notes from his hand. He specifically stated that no conversation took place between him and the appellant prior to his placing the amount of Rs.1,500/- on the sofa inside the house of the appellant.
PW-1 further admitted that on 23.05.2006 the appellant immediately handed over the 7/12 extract to him and thereafter went inside the house to bring drinking water. During the absence of the appellant, PW-1 himself kept the amount of Rs.1,500/- on the sofa cover. He further admitted that till the arrival of the raiding party, the appellant was not aware of the said amount having been kept on the sofa.
PW-1 also admitted that no demand of bribe was made by the appellant on 22.05.2006 and that he lodged the complaint as he was annoyed and felt harassed, despite the mutation having already been prepared. These admissions completely demolish the prosecution case on the aspect of demand.
It is well settled that proof of demand of illegal gratification is a sine qua non for constituting offences under Sections 7 and 13 of the PC Act. In the absence of proof of demand, mere recovery of tainted currency notes, that too not from the possession of the appellant, is insufficient to sustain a conviction.
The evidence of PW-3 Pralhad Sapkal, Panch No.1, also does not inspire confidence. He admitted that the tainted currency notes were not recovered from the person of the appellant but were taken from the sofa pillow. He further admitted that several material facts deposed by him before the Court were not stated in his police statement.
PW-3 further admitted that there was no independent identification mark on the currency notes except their numbers and that the notes were not seized from the hands or pockets of the appellant. These admissions materially weaken the prosecution version regarding conscious acceptance of the bribe amount by the appellant.
PW-4 Vijay Dhage, Panch No.2, similarly admitted that the bribe amount was not seized from the appellant but from the sofa. He further admitted that his knowledge regarding the events that took place inside the house prior to the signal was hearsay and that several facts stated by him in Court do not find mention in his police statement.
Both panch witnesses admitted that copies of their statements were supplied to them prior to their deposition and that material omissions exist between their police statements and court testimony, thereby affecting their credibility.
PW-5 Dy.S.P. Tadwi, the Investigating Officer, admitted that no station diary entry was made regarding the initial telephonic call of the complainant. He further admitted that the demand of bribe is not specifically mentioned in the statement of Panch No.1. He also admitted that the tainted amount was not recovered from the physical possession of the appellant.
Though PW-2 proved the registration of the FIR and PW-6 proved the sanction for prosecution, their evidence does not advance the prosecution case on the crucial aspects of demand and acceptance.
This Court has carefully considered the rival submissions, examined the impugned judgment, and scrutinised the oral and documentary evidence on record. The central issue is whether the prosecution has proved beyond reasonable doubt the essential ingredients of demand and acceptance of illegal gratification, so as to sustain the conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
It is well settled that proof of demand of illegal gratification is sine qua non for constituting offences under Sections 7 and 13 of the PC Act. Mere recovery of tainted currency notes, divorced from proof of demand, cannot lead to conviction. This legal position has been authoritatively laid down by the Hon’ble Supreme Court in B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55, and consistently reiterated thereafter. In P. Satyanarayana Murthy v. State of Andhra Pradesh, (2015) 10 SCC 152. The Hon’ble Supreme Court has categorically held that mere possession and recovery of currency notes, without proof of demand, is insufficient to establish the offence under the PC Act.
Upon consideration of the submissions, it is noted that the demand of illegal gratification is a vital element of offences under Sections 7 and 13 of the PC Act. The record indicates discrepancies in the dates and presence of panch witnesses, and the complainant’s own testimony does not conclusively establish a demand at the time alleged. The lack of immediate reporting and the absence of contemporaneous verification weaken the prosecution’s claim of demand. These factors, therefore, call for careful scrutiny in evaluating the credibility and sufficiency of evidence to sustain a conviction under the said provisions.
In the present case, the prosecution primarily relies upon the testimony of PW-1, the complainant. Though PW-1 supported the prosecution in his examination-in-chief, his cross-examination contains material admissions which go to the root of the case. PW-1 has categorically admitted that on the date of the trap the appellant immediately handed over the 7/12 extract to him and thereafter went inside the house to bring drinking water. PW-1 further admitted that during the absence of the appellant, he himself placed the amount of Rs.1,500/- on the sofa and that the appellant was not aware of the same till the arrival of the raiding party. PW-1 has also denied any demand or acceptance of bribe at the time of the trap. He has specifically stated that no conversation regarding money took place prior to his placing the amount on the sofa.
In Mukhtiar Singh (supra), the Hon’ble Supreme Court has categorically held that where the complainant does not support the prosecution case with regard to the demand of illegal gratification and there is no independent corroborative evidence, the accused is entitled to the benefit of acquittal. We find merit in the submission advanced by the learned Counsel for the appellant placing reliance on the aforesaid decision, as the ratio laid down therein squarely applies to the facts of the present case.
Once the complainant himself disowns the allegation of demand and acceptance, the foundational facts necessary to attract Sections 7 and 13 of the PC Act are not established. The prosecution cannot succeed merely on the basis of recovery.
The evidence of the panch witnesses, PW-3 and PW-4, does not improve the prosecution case. Both admitted that the tainted currency notes were not recovered from the physical possession of the appellant but were seized from the sofa. They also admitted material omissions between their police statements and Court testimony.
In Krishan Chander v. State of Delhi, (2016) 3 SCC 108, the Hon’ble Supreme Court has held that where recovery is not from the person of the accused and demand is not proved, conviction cannot be sustained. The relevant paragraphs 37 and 38 of the said judgment read thus:
“37.In P. Satyanarayana Murthy, it was held by this Court as under : (SCC 159, paras 21-23)
“21.In State of Kerala v. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22.In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d) (i)&(ii) of the Act. It has been propounded that 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23.The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis supplied)
38.Further, in Satvir Singh v. State of Delhi, this Court has held thus: (SCC pp. 157-158, paras 34-35)
“34.This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39)
“39.Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.”
The learned Senior Counsel for the appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that: (SCC pp. 456-57, para 24)
“24.In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8)
‘8. … It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.” '” (emphasis supplied)
PW-4 further admitted that his knowledge of events prior to the signal was hearsay. Such testimony cannot be treated as reliable corroboration of the complainant on the vital aspect of demand.
The Investigating Officer (PW-5) admitted that the demand of bribe does not find mention in the statement of Panch No.1 and that no station diary entry was made regarding the initial telephonic complaint. These omissions assume importance in light of the doubtful primary evidence.
In N. Vijayakumar (supra), the Hon’ble Supreme Court observed in paragraphs 26 and 27 which are reproduced hereinbelow:
“26.It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI and in B. Jayaraj v. State of A. P. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d) (i)and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.
27.The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj(supra) read as under :
“7.Insofar as the offence under Section 7 is concerned, it is a settled position in law 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 the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. 8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) 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. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. 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 are wholly absent.”
The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”
The prosecution has relied upon the presence of anthracene powder on the fingers of the appellant and on the sofa cover. However, in C.M. Girish Babu v. CBI, (2009) 3 SCC 779, the Hon’ble Supreme Court has held that chemical test and recovery evidence, by themselves, are insufficient unless demand is proved beyond reasonable doubt.
In N. Vijayakumar (supra), the Hon’ble Supreme Court has reiterated that the presumption under Section 20 does not arise automatically and can be invoked only after the prosecution establishes demand and acceptance.
In the present case, in view of the categorical admissions of PW-1, the foundational facts of demand and acceptance are not proved. Consequently, the statutory presumption under Section 20 of the PC Act does not arise.
The defence explanation that the amount was planted on the sofa cannot be brushed aside, particularly when it finds support from the complainant’s own testimony. In V. Sejappa v. State, (2016) 12 SCC 150, the Hon’ble Supreme Court held that where two views are possible, the one favouring the accused must be adopted.
Though the sanction for prosecution has been duly proved, it is settled law that a valid sanction cannot compensate for failure to prove the substantive offence.
In view of the authoritative pronouncements of the Hon’ble Supreme Court and the evidence on record, this Court finds that the prosecution has failed to establish beyond reasonable doubt the essential ingredients of demand and voluntary acceptance of illegal gratification by the appellant.
The evidence, when assessed cumulatively, gives rise to serious and reasonable doubt regarding the prosecution case. The learned trial Court failed to properly appreciate the binding legal principles governing offences under the PC Act and the material admissions on record, and thus erred in convicting the appellant. The appellant is, therefore, entitled to the benefit of doubt. The impugned judgment and order of conviction and sentence cannot be sustained and deserve to be set aside. Hence, I proceed to pass the order :
Order
Criminal Appeal is allowed.
The impugned judgment and order dated 17.01.2013, passed by the learned Special Judge, Kelapur in Special Case No. 3/2006 is hereby quashed and set aside.
The appellant is acquitted of the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act.
Bail bonds of the appellant stand discharged.
Fine, if any, paid by the appellant be refunded to him.