SAURABH KRISHNACHANDRA DE vs THE STATE OF MAH.THR.ACB. WARDHA

Appellant assailed the judgment of conviction awarded by learned Judge, Special Court constituted under the Prevention of Corruption Act, Wardha

in Special Case No. 12/1994.

The case of the prosecution against the appellant can be summarized as under.

(i) The complainant had purchased one cow. Complainant applied for loan. As he was in the category of BPL (Below Poverty Line),

complainant approached to the bank officer. Bank officer directed the complainant to bring certificate from veterinary doctor. Appellant was

working at Panchayat Samitee, Selu. Complainant approached to appellant. Appellant demanded Rs. 300/ from the complainant to issue

certificate of insurance.

(ii) Complainant taken appellant in the animal market. Appellant examined cow. Complainant requested to appellant to issue certificate but he was

insisting to pay Rs. 400/Â. After negotiations, he agreed to accept Rs. 300/ from the complainant. But complainant was not ready to give bribe,

therefore, he approached to the office of Anti corruption Bureau (ACB), Wardha and lodged report against appellant. As per procedure, preÂtrap

panchanama was prepared in presence of panchas. Thereafter necessary instructions were given to complainant and panchas by the Officer of

ACB Shri Johari. On the next day, trap was arranged.

(iii) As per the instructions given by Shri Johari, complainant and panch no. 1 approached to the office of appellant. Complainant saluted to

appellant. Appellant issued certificate to the complainant and thereafter he demanded amount of Rs. 200/Â. Complainant went out of the office and

gave signal to the trap party.

(iv) Trap party reached to the office of appellant and apprehended his hands in presence of panchas.

(v) Demonstration was given. Both the hands of appellant were dipped in the solution. Colour of solution was changed into purple. Post trap

panchanama was prepared and thereafter report was lodged in the police station. Papers were sent for sanction to the appointing authority. After

complete investigation, chargeÂ​sheet came to be filed before the Special Court at Wardha.

(vi) Charge was framed at Exhibit 19. Same was readover and explained to the accused/appellant. He pleaded not guilty and claimed to be

tried. It appears from the defence that appellant was visiting to the house of complainant and used to give treatment to his animals, therefore,

appellant demanded his visit fee and expenditure of medicines. It is clear from the suggestions in the crossÂexamination to the witnesses that

appellant demanded that amount in respect of his visit fees and expenditure of medicines and it was not the amount of bribe.

(vii) Prosecution has examined in all total 7 witnesses. At the conclusion of trial, learned Special Judge convicted the appellant for the offence

punishable under Section 7 of the Prevention of corruption Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.

1000/ in default to suffer simple imprisonment for six months. Appellant is also convicted for the offence punishable under Section 13(1)(d)

punishable under Section 13(2) of the Prevention of corruption Act and sentenced to suffer rigorous imprisonment for one year and to pay a fine of

Rs. 1000/Â​ in default to suffer simple imprisonment for six months.

Heard learned Senior Counsel Shri Mardikar for the appellant.  He has pointed out evidence of P. W. 1 Shashikant Chithale and submitted that

sanction accorded by P.W. 1 is defective. Learned Senior Counsel pointed out crossÂexamination of panch witness and submitted that defence of

the appellant is admitted by this witness. Therefore, it is clear that it was not bribe amount but it was the amount of visit fees and medicine

expenditure. Learned trial Court not considered the defence and wrongly convicted the appellant.Â

Heard learned Additional Public Prosecutor Shri Mirza for the State/respondent. He has supported the impugned judgment.

Perused the evidence on record. From the evidence of P.W. 1, it is clear that he issued sanction order mechanically. His evidence itself shows

that he received the papers along with typed order of sanction. This itself shows that without applying his mind, he issued sanction order.

Complainant P.W. 3 Vasant Batale in his evidence stated about the demand of bribe amount of Rs. 400 by the appellant. However, appellant

reduced the amount from Rs. 400/ to Rs. 300/Â. He had already paid Rs. 100/ and, therefore, Rs. 200 was to be paid. He was not willing to

pay the bribe and, therefore, he lodged report in the office of A.C.B. In his crossÂexamination, he has admitted that cow was purchased in the

name of his wife. Appellant who was veterinary doctor accompanied him at Babulgaon, Selu Bazar. He examined the cow and attached badge

(billa).

Complainant has admitted in his crossÂexamination that he never said to the police that he was not willing to give bribe, therefore, he went to the

office of A.C.B. and lodged the complaint. Portion marked 'A' brought to the notice of P.W. 3 â€" complainant but he denied the contents. In the

crossÂexamination, he replied the questions evasively stating that he did not remember. Portion marked 'B' pointed out to him but he denied the

contents. He has stated that whatever the work Constable Malpe in respect of post trap panchanam was not done on the spot but it was done in the

office of A.C.B. He has admitted that in his previous statement recorded by A.C.B., he did not state that Dr. De demanded bribe and accepted the

bribe, kept the bribe amount in his pocket.

Evidence of P.W. 3 â€" complainant is not reliable. There is material omissions and contradictions in his evidence. Though he has denied the

material defence but independent witness P.W. 4 has specifically stated in his evidence that appellant demanded amount of his fees and expenditure

of medicines. Therefore, it is clear that appellant not demanded any bribe but it was the amount in respect of his visit fees to the house of

complainant and expenditure of medicines.

Admission of material witness who was along with the complainant at the time of trap i.e. P. W. 4 Subhash Malpe is relevant. He has admitted in

his crossÂ​examination as under :

It is true that I was in the office of Dr. De for about ½ an hour and during that period Dr. De and complainant Batale they talk a lot with each

other. It is true that Dr. De put questions to Batale about the health of cow. It is true that Dr. De made inquiry whether complainant is providing

medicines to the cow as per the direction of Dr. De. It is true that myself and Batale we went were the only two persons who went in the office of

Dr. De.

My statement was recorded by A.C.B.. While giving statement to A.C.B. I did not say that “Dr. De said now your work is over.â€. It is

not true to say that De. De he never said to Batale that “your work is over give money.â€Â It is true that on that day Dr. De said to the

complainant that “for two to four times I have visited your house, but still you have not paid visit fee and the amount of medicines.â€​

From the admission of P.W. 4 Subhash who was present at the time of trap, it is clear that appellant demanded his fees and medicine

expenditure. It is clear from his evidence that appellant not demanded any bribe amount. Appellant stated to the Investigating Officer ShriÂ

Johari that he did not demand any bribe but he demanded his fees and expenditure of medicines because he several times visited to the house of

complainant and provided medical treatment to the animals. As per the evidence on record, Shri Johari not recorded the submission of appellant at

the time of trial. It was the duty of the trap officer (Investigating Officer) to record the statement of appellant/accused in respect of his

submission. There was no any opportunity to the appellant to crossÂ​examine Shri Johari because during trial, he was died.

From the evidence on record, it is clear that sanction accorded by P.W. 1 is defective.

Admission of P.W. 4 clearly shows that appellant not demanded any bribe amount but it was the amount of his visit fees and expenditure of

medicines. Learned Senior Counsel Shri Mardikar pointed out the judgment of Hon'ble Apex Court in the case of T. Subramanian Vs. State of

Tamil Nadu reported in 2006 ALL MR (Cri) 620 (S.C.). The Hon'ble Apex Court has observed as under :Â

Mere receipt of Rs.200/Â by the appellant from PWÂ1 on 10.7.1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section

5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount

had been paid as lease rent arrears due to the temple or even if it was not so paid, but the accused was made to believe that the payment was towards

lease rent due to the temple, he cannot be said to have committed any offence. If the reason for receiving the amount is explained and the explanation

is probable and reasonable, then the appellant had to be acquitted, as rightly done by the Special Court. In Punjabrao v. State of Maharashtra (2002

(10) SCC 371), the accused, a patwari, was on a campaign to collect loan amounts due to Government. The complainant therein was admittedly a

debtor to the Government. The accused explained that the amount in question was received towards loan. This Court accepted such explanation

(though such explanation was not immediately offered as in this case, but was given only in the statement under Section 313) holding thus :Â​

It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for

consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his

defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.

In the present case, accused gave his explanation in his statement under Section 313 of Code of Criminal Procedure that he received Rs. 200/Â‐

towards his fees and medical expenditure.

It is well settled law that burden, on prosecution to prove the guilt of accused beyond doubt, is more heavy than accused. Accused has to prove

the probable defence whereas the prosecution has to prove beyond reasonable doubt. In the present case, appellant established his probable

defence. P.W. 4 has admitted in his crossÂexamination that appellant demanded his visit fees and expenditure of medicines. Learned trial Court

not considered the burden of proof discharged by the appellant. Appellant has proved his probable defence. Hence, the impugned judgment is liable

to be quashed and set aside. With these findings, I proceed to pass the following order.

ORDER

(i) The appeal is allowed.

(ii) Impugned judgment is hereby quashed and set aside.

(iii) Appellant is acquitted of the offence punishable under Section 7 of the Prevention of Corruption Act and Section 13(1)(d) punishable under

Section 13(2) of the Prevention of Corruption Act.

(iv) Appellant is on bail. His bail bond stands cancelled.

(v) R & P be sent back to the trial Court.

(vi) Fine amount, if paid, same shall be refunded to the appellant.