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TMI Blog2023 (6) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... APP. JUDGMENT P.D. NAIK, J. 1. Appellant has challenged the Judgment and Order dated 12th January 2007 passed by Special Judge (Anti Corruption), Nashik in Special Case (ACB) No. 9 of 2000 convicting the Appellant for the offences under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act (`P.C Act'). For the offence punishable u/s.7 of P.C.Act, Appellant is sentenced to suffer imprisonment for six months and to pay fine of Rs. 1,000/-For rest of the offences punishable u/s.13(1)(d) r/w 13(2) of P.C Act, Appellant is sentenced to suffer imprisonment for one year and to pay fine of Rs. 1,000/-. Both the sentences were directed to run concurrently. 2. The case of prosecution is as follows :- (a) The complainant Kailas Bhaskar Khairnar is resident of Bhagur, District Nashik. He owns land on Plot No. 15 out of Survey No. 41/2/2(b) in joint ownership with his father. The land was purchased from one Prakash Khairnar on 10th June 1999 by registered sale deed; (b) The complainant submitted an application to Talathi of Village Bhagur through his advocate for mutation of their names. The complainant visited office of Talathi to pursue his appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing investigation charge sheet was filed. 3. Charge was framed against accused vide order dated 10th July 2006. Pursuant to the order framing charge, prosecution examined four witnesses. PW-1 Kailas Bhaskar Khairnar is the original complainant. PW-2 Vasudev Yeshwant Chandras is the panch witness. PW-3 Pravin J. Shinde is the Deputy Collector/Sanctioning Authority. PW-4 Prabhakar P. Shelke is the Investigating Officer. Statement of accused was recorded u/s.313 of Code of Criminal Procedure. 4. Learned advocate for Appellant submitted that prosecution has failed to establish demand of bribe. The evidence of complainant does not inspire confidence. The prosecution has not proved that Appellant had accepted the bribe amount for the purpose of carrying out the work of complainant. The panch witness has stated that accused had demanded money, however, his evidence is silent with regards to the purpose for which amount was demanded. The prosecution has relied upon the documents viz. Exhibits-12,14,15. Exh.12 is the application preferred by complainant for mutation entries in the 7/12 extract in respect to the property purchased by him and his father. Exh.13 is the document relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st March 2000 is based on uncorroborated testimony. The case of complainant is that amount of Rs. 500/-was demanded for the purpose of carrying the work relating to his application (Exh.12). The panch witness has stated that accused had asked the complainant whether the amount is paid by him as discussed earlier, however, the panch witness does not mention the fact that amount which was to be handed over was in relation to illegal gratification and hence on the basis of such version, the Appellant cannot be convicted. There are several discrepancies in the evidence of prosecution. The prosecution has failed to prove the demand and circumstances tried to be put forth by the prosecution are suffering from doubts. Hence conviction based on such evidence needs to be set aside. 5. Mr.Joshi has relied on following decisions : (i) Suraj Mal Vs. State (Delhi Administration) (1979) 4-SCC-725; (ii) State of Punjab Vs. Madan Mohan Lal Verma (2013)14-SCC-153; (iii) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede- 2009-ALL MR (Cri)-3127 (S.C); (iv) Baburao Ganpati Bhoi Vs The State of Maharashtra 2023-ALL MR (Cri)-34; (v) Shankar Pandurang Waghere Vs. The State of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had demanded and accepted bribe amount. 7. Learned APP has relied upon decision of Hon'ble Supreme Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T of Delhi (Criminal Appeal No. 1669 of 2009, decided on 15-12-2022). Learned APP has adverted to the observations in paragraph 68 of the said decision more particularly clause-(c) therein, wherein it is observed that the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 8. In rejoinder Mr.Joshi has submitted that after after answering the reference in the aforesaid decision, the matter was relegated to the concerned Bench and the case has ultimately resulted in acquittal, which is evident from the decision dated 17th March 2023 9. PW-1 Kailas Bhaskar Khairnar has deposed that, he had purchased plot out of Survey No. 41/1/2B bearing Plot No. 15 in June 1999. To enter name on record, he submitted application in January 2000 to Talathi. He met accused. He told him that he will be required to give Rs. 500/-to enter the name in the record. After three months he approached the accused on 1st March 2000. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gave signal. Raiding party apprehended accused. In the cross-examination he stated that the name of Government Officer was kept secret. He had stated in the statement that accused asked the complainant as to whether he has brought his amount. When statement was shown to him, he stated that the word `maze' is not mentioned. 11. PW-3 Pravin Shinde was Deputy Chief Officer of Sub-Divisional Office at Nashik He stated that he had authority for removal and appointment of Talathi. He issued sanction order for prosecution against applicant. In the cross-examination he stated that during the relevant period the government had given target for small savings. Target was given to Tahsildar and Talathis. Accordingly the Talathis have issued the orders that they should encourage the khatedars or the persons in their contact to invest in small saving schemes. Accordingly, weekly or periodically or at the year end meetings were held and they were called to submit their report of investment in small savings and for that purpose, the concerned officer or the employee was required to accept the amount on investment and on making investment and receiving the certificate, he was required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/12 extract, the complainant submitted an application to the office of Talathi (Exh.12) on 18th January 2000. The application makes a reference to the property situated at Mauje Bhagur bearing Survey No. 41/1/2B/15, Plot no.15. Application also indicate enclosure of two documents viz. sale deed and notice. Exh.15 is correction deed. Notice is marked as Exh.13 and sale deed dated 10th June 1999 is marked as Exh.14. The sale deed described the property as S. No. 48/1/2B/15. Since the survey number was incorrect, correction deed was executed on 12th November 1999, stating that S. No. 48/1/2B/15 has been typed inadvertently and the corrected number is S. No. 41/1/2B/15. It is pertinent to note that application Exh.12 does not refer to correction deed. It was not enclosed along with application Exh.12. The correction deed was executed for the purpose of rectifying the survey number and which was a vital document for adjudicating application Exh.12. It is relevant to note that application Exh.12 was submitted on 18th January 2000. The defense of accused is that on account of non compliance of the requirements to mutate the entries, the application was not adjudicated immediately. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invest in the government schemes. The appellant was felicitated for such work. Thus, the aforesaid defense can be said to be a probable defense. Thus, the case of prosecution with regards to the demand of illegal gratification suffers from serious doubt and it is difficult to accept that prosecution has establish that accused has demanded bribe amount. Conduct of the complainant suffers from doubt. His evidence does not inspire confidence. It is further relevant to note that complainant has alleged that accused has demanded Rs. 500/-as bribe. He has handed over amount of Rs. 200/-to the accused. Handing over of Rs. 200/-is based on the sole testimony of complainant. The complainant has further alleged that amount of Rs. 300/-was demanded by accused and it was to be handed over to him on the date of raid. The complaint was recorded. Instructions were given to the raiding party, anthracene powder was applied to the currency notes of Rs. 300/-which were to be handed over to the accused. Complainant and panch witnesses were clearly instructed that bribe amount was to be handed over on the demand being made by accused. According to complainant (PW-1) and panch witness (PW-2) while hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s.20 of the P.C.Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by hi, other than as a motive or reward as referred to in Section 7 of P.C.Act. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in is possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (supra), it is held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. Demand, acceptance and recovery of the amount of illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, such as Kishanchand Mangal Vs. State of Rajasthan (1982)3-SCC-466, Hazarilal Vs. State (Delhi Administration) (1980)2-SCC-390 and M.Narsinga Rao Vs. State of A.P. (2001)1-SCC-691, wherein the Supreme Court, despite the absence of primary evidence of the complainant, sustained the conviction of the accused by relying on other evidence, and raising a presumption under the statute. The two Judges Bench referred the question of a law for determination by a larger bench viz. The question whether in the absence of evidence of complaint/direct or primary evidence of demand of illegal gratification is not permissible to draw inferential deduction of culpability/guilt of a Public Servant us.7 and Section 13(1)(d) read with Section 13(2) of P.C.Act, 1988 based on other evidence adduced by the prosecution . Vide order dated 27th August 2019, the three Judges bench observed that two three Judge Benches of Supreme Court, in the cases of B.Jayraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 and P.Satyanarayana Murthy Vs. District Inspector of Police, State of A.P. and another (2015)10-SCC-152 are in conflict with an earlier three Judge bench decision of Supreme Court in M.Narsinga Rao Vs. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind : (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13(1)(d) (I) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 18. The conclusion in the aforesaid discussion was reflected in paragraph 69 and 70, which is as follows : 69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three Judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three Judge Bench decision in M.Nrasingha Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or primary evidence of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns hostile is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (I) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (I) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/o guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that the absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence. 18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench doe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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