Jagannath Divanrao Barse vs State Of Maharashtra

1. The appellant/accused has challenged the judgment and order dated 29.03.2005 in Special Case No.26/2003 passed by the IIÂSpecial Judge at

Aurangabad thereby convicting him for the offences punishable under Section 7 and Section 13 (1)(d) punishable under Section 13 (2) of the

Prevention of Corruption Act, 1988 (hereinafter referred to as 'the said Act') and sentencing him to suffer rigorous imprisonment for one year and to

pay a fine of Rs.500/Â, in default, to suffer further rigorous imprisonment for one month on each count. Both the sentences of imprisonment have

been ordered to run concurrently.

2. Facts of the prosecution case, in short, are as under:Â​

[A] The complainant Shaikh Kalimoddin S/o. Shaikh Najimoddin (PWÂ1) who is resident of Khultabad, Dist. Aurangabad was driver on

the private KaliÂPili Trax/Taxi bearing No.MHÂ19ÂCÂ5565, (hereinafter referred to as 'the jeep') owned by one Mohd. Muzafar (whose name is

Shaikh Muzafar Shaikh Akbar in the list of witnesses in the charge sheet, who is hereinafter referred to as Mohd. Muzafar) resident of Khultabad

since one year prior to the complaint dated 26.08.2003. At that time the appellant Barse was Police Naik attached to the Police Station Fulambri, Dist.

Aurangabad. The complainant was running the aforesaid jeep on Khultabad to Fulambri road for carrying the passengers. It is alleged that the

appellant was taking Hafta of Rs.200/Â from the complainant on the weekly Bazar day of Fulambri and on failure of the complainant to give said

Hafta to the appellant he used to threat the complainant that he would not allow the complainant to run the jeep to carry passengers. Due to rainy

reason there was no sufficient business of carrying passengers on Khultabad to Fulambri road and therefore, the complainant and owner of jeep had

requested the appellant that they are unable to give Hafta to him. Thereupon, the appellant had threatened them that they have to stop the business

and if they have to do the business they will have to pay Rs.200/Â​ on every Bazar day to him.

[B] Further it is the case of the prosecution that on 23.08.2003 at about 16.00 hours while the complainant was taking jeep

towards Fulambri from Khultabad with passengers, the appellant stopped the jeep near Deogiri Sugar Factory and demanded Hafta amount of

Rs.200/Â. At that time the complainant told him that on asking Sheth i.e. his master he would give said amount to him in the after noon of Bazar day

of Fulambri. Thereupon, the appellant allowed the complainant to go. Thereafter, the complainant narrated said incident to jeep owner Mohd. Muzafar.

Thereupon, owner of the jeep showed his unwillingness to give Hafta of Rs.200/Â on weekly Bazar day to the appellant and asked the complainant to

lodge the complaint with the Anti Corruption Bureau, Aurangabad. Accordingly, in the morning on 26.08.2003 the complainant went to the office of

Anti Corruption Bureau at Aurangabad and narrated incident as above to the Police Inspector Naik (PWÂ6) who reduced the complaint (Exh.11) into

writing. It is further alleged in the complaint that on 26.08.2003 the appellant would accept Hafta amount of Rs.200/Â from complainant on Khultabad

to Fulambri road between Deogiri Sugar Factory to Fulambri.

[C]Â After the complaint as above PI Naik called two Panchas in the office of Anti Corruption Bureau at Aurangabad. After giving necessary

instructions to panchas and complainant by PI Naik (PWÂ6) pre trap panchanama (Exh.16) was prepared and an amount of Rs.200/ i.e. one

currency note of 100 denomination, one currency note of 50 denomination, two currency notes of 20 denomination and one currency note of 10

denomination which were produced by the complainant were given to him after the said currency notes were smeared with anthracene powder. Then

the complainant (PWÂ1), Panch No.1ÂKeshav Jadhav (PWÂ2) Shadow panch, Shaikh Nazimoddin (PWÂ4) and Police Constables Pathan and

Awale proceeded by jeep to meet the appellant on the spot on Khultabad to Fulambri road as agreed to give Hafta amount to the appellant and they

went to Fulambri where other jeeps were parked.

[D] At Fulambri the appellant having Khaki Pant, Khaki Shirt, Colour TÂshirt on his person came on motorcycle. The complainant

(PWÂ1), JadhavÂ(PWÂ2) Shadow panch and PWÂ4ÂNajimoddin went to the appellant. There was talk between PWÂ4ÂNajimoddin and the

appellant. Then the complainant gave tainted currency notes to the appellant. He accepted said currency notes by right hand and kept the same in the

pocket of his TÂshirt. Thereupon, preÂarranged signal was given by the complainant to the raiding party. Then the Investigating Officer (PWÂ6),

(PWÂ 3)ÂPanch No.2 with other members in the raiding party came near the appellant and tainted currency notes were recovered from the

appellant. Accordingly, detailed post trap panchanama (Exh.17) was prepared. The appellant was arrested. Then on behalf of the State the complaint

was filed by Police Inspector Naik (PWÂ​6) in Police Station, Fulambri against the appellant for the aforesaid offences and Crime No.14/2003 came to

be registered against him. Necessary sanction to prosecute the appellant was obtained. After completion of the investigation PI Naik filed chargeÂ‐

sheet in the Special Court.

[E]Â The Special Judge, Aurangabad framed charge against the accused for the offence under Section 7 and 13(1)(d) read with Section 13 (2) of the

said Act. The appellant pleaded not guilty and claimed to be tried.

[F] Defence of the appellant is that the complainant had taken some hand loan from him. When he insisted him for its repayment in

police language he thached this false story. The Police Inspector Naik wanted to complete his quota of cases and hence he took help of PWÂ2 and

PWÂ​3 and involved him in false case at the instance of the complainant. PWÂ​4 is relative of complainant and hence he is deposing false.

[G] The prosecution has examined in all six witnesses namely complainant Shaikh Kalimoddin S/o. Shaikh Nazimoddin (PWÂ1),

Keshav Rambhau Jadhav Shadow Panch/Panch No.1 (PWÂ2), Sudhir Hari Mahalpure (PWÂ3) Panch No.2, Shaikh Najimoddin Shaikh Alimoddin

(PWÂ​4), Ramesh Mansubrao Pawar (PWÂ​

5)Â and Police Inspector Mandar Wasudeo Naik, Investigating Officer (PWÂ5) and relied upon aforesaid panchanams, complaint and sanction

order.

[H] On considering the evidence adduced by the prosecution and defence of the appellant, the learned Special Judge convicted and

sentenced the appellant for the offences with which he was charged as stated earlier in the opening para of this judgment by the impugned judgment.

Aggrieved thereby this appeal by the appellant/accused.

3. The sentence of imprisonment recorded against the appellant was suspended by the trial Court and by order dated 28.04.2005 this Court

continued the said order of suspension of sentence and the appellant was ordered to be released on bail on fresh bond of same amount as in the trial

Court.

4. Mr.Govind Kulkarni, learned Advocate h/f Mr.Rajendra Deshmukh, learned Advocate for the appellant has submitted that there is no

consistency in the evidence of the complainant (PWÂ1) and PWÂ2 (Panch No.1) in respect of talk between the complainant and the accused at the

material time of incident on 26.08.2003. Moreover, the complainant did not support the prosecution case and admits the defence of the appellant that

the appellant had given hand loan of Rs.200/Â to the complainant and he made repayment of the same to the appellant. Further it is submitted by the

learned Advocate that PWÂ3 (Panch No.2), PWÂ4 Najimoddin and PWÂ5 Ramesh Pawar have also not supported the prosecution case and they

have been declared hostile by the prosecution. Therefore, the evidence of PW Nos.1 and 2 is not sufficient to hold that the prosecution has proved

initial demand of bribe amount of Rs.200/Â made by the appellant to complainant (PWÂ1) on 23.08.2003 or demand of said bribe amount made by the

appellant to the complainant on the day of trap on 26.08.2003. As such, according to the learned Advocate the prosecution has failed to prove demand

of bribe of Rs.200/Â​ as Hafta made by the appellant to the complainant to allow the complainant to run jeep to carry the passengers.

Learned Advocate for the appellant submitted that even, if it is said that the appellant has accepted an amount of Rs.200/Â​ from the complainant on

the date of trap, mere acceptance of amount is not sufficient to raise presumption under Section 20 of the said Act against the appellant when the

prosecution has failed to prove demand of bribe amount of Rs.200/Â made by the accused to the complainant as Hafta. Learned Advocate submitted

that in such circumstances the question of rebuttal of aforesaid presumption by the appellant does not arise. However, on the basis of evidence of the

complainant (PWÂ1) when he has in clear terms admitted that there was money transaction between him and the appellant/accused, that he used to

obtain hand loan of Rs.100/Â or Rs.200/Â from the appellant and when PWÂ1 has admitted that on 26.08.2003 i.e. on the date of trap he was to

repay Rs.200/Â to the appellant towards hand loan obtained by him and as the evidence of PWÂ 2 (Panch No.1) shows that the appellant said to

Police Inspector Naik (PWÂ6) when he was caught hold that he had not taken any bribe and that he has received back the amount advanced by him,

defence of the appellant is probable.

6. Learned Advocate for the appellant further submits that as per the prosecution case the complainant lodged the complaint with the office of the

Anti Corruption Bureau at Aurangabad as the owner of the jeep Mohd. Muzafar asked him to lodge the same, as he was not willing to give Hafta to

the appellant. When the complainant as referred above did not support the prosecution case and in the crossÂexamination admitted the defence of the

appellant/accused it was necessary for the prosecution to examine said Muzafar owner of the jeep to prove the fact that really the appellant made

initial demand/first demand of Hafta of Rs.200/Â on 23.08.2003 to the complainant and that the complainant told him that he would give said Hafta to

the appellant on weekly Bazar day of Fulambri on asking the owner of jeep. But, admittedly the prosecution has not examined the jeep owner Mohd.

Muzafar. Failure of the prosecution to examine him creates a doubt about the initial demand of Hafta of Rs.200/Â made by the appellant on

23.08.2003 as alleged by the prosecution. Learned Advocate for the appellant submitted that when the defence of the appellant is probable and the

appellant immediately gave explanation of an amount of Rs.200/Â allegedly given by the complainant to him, the conviction and sentence recorded

against the appellant as per the impugned judgment is not sustainable and the same is liable to be set aside by giving benefit of doubt to the appellant

and the appellant needs to be acquitted of the offences for which he has been convicted and sentenced by allowing the appeal.

7. To support his submissions that even if there is acceptance of amount by the appellant as no demand of bribe amount by the appellant is

established by the prosecution, no presumption under Section 20 of the said Act arise, the learned Advocate has relied on the decision of Hon'ble

Supreme Court in the case of P. Satyanarayana Murthy Vs Dist. Inspector of Police and another 2015 AIR (SC) 3549. In the said case in paragraph

Nos. 20,23,24,25, and 26 it was observed thus:

20. In a recent enunciation by this Court to discern the imperative preÂrequisites of Sections 7 and 13 of the Act, it has been underlined in B.

Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not

establish an offence under Section 7 as well as 13(1)(d)(i) &Â (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 sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1ÂS.Udaya Bhaskar. The

substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to

the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring

on the previous day, whereupon the complainant took out Rs.500/Â from the pocket of his shirt and handed over the same to the appellant. Though, a

very spirited endeavour has been made by the learned counsel for the State to co relate this statement of PW1ÂS.Udaya Bhaskar to the attendant

facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency

notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a

finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1Â‐

S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined

by law to hold that the offence under Section 7 or 13(1)(d)(i) & (ii) of the Act has been proved. True it is, that on the demise of the complainant,

primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 03.10.1996 by the

appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 04.10.1996. However, the testimony of PW1ÂS Udaya

Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law

to enter a finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act against the appellant has been proved beyond reasonable doubt. 13(1)

which in our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 & (d)(i) & (ii) has been

proved, would be an inferential deduction is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7

of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua

Sections 7 and 13(1)(d)(i)&(ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.

24. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas Vs State

of Assam (2013)

12Â SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of

'may be' true but has to upgrade it in the domain of “must beâ€​ true in order to steer clear of any possible surmise or conjecture.

25. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then

the benefit of doubt must be given to the accused.

26. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the

prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would

be wholly unÂsafe to sustain the conviction of the appellant under Section 13(1)(d)(i)&(ii) read with section 13(2) of the Act as well. In the result, the

appeal succeeds. The impugned judgment and order of the High Court is hereby setÂaside. The appellant is on bail. His bail bonds stands discharged.

Original record be sent back immediately.

8. On the other hand Mr.Borade, learned APP for the respondent/State supported the impugned judgment. According to him sanction accorded to

prosecute the appellant is not disputed. So also, the appellant does not dispute acceptance of amount of Rs.200/Â from the complainant. He submitted

that in paragraph No.16 of the judgment the trial Court has considered the evidence and rightly held that demand of bribe made by the appellant to the

complainant is established. According to him there is no reason to interfere with the impugned judgment and findings recorded by the trial Court and

claimed to dismiss the appeal.

9. I have carefully considered the submissions made by the learned Advocate for the appellant and learned APP. I have gone through the evidence

and impugned judgment.

10. There is no dispute that at the material time of incident on 26.08.2003 the appellant was Police Naik attached to the Fulambri Police Station and

was a public servant. There is no dispute that sanction to prosecute him was accorded by Superintendent of Police (Rural), Aurangabad as per order

dated 18.11.2003 (Exh.27).

11. There is also no dispute that the jeep No. MHÂ19ÂCÂ5565 was owned by one Mohd. Muzafar and the complainant was driver on the said

jeep at the relevant time of incident.

12. The appellant was charged for the offences under Sections 7 & 13(1)(d) read with 13(2) of the said Act. As per the prosecution case the

complainant Shaikh Kalimoddin (PWÂ1) was driver on the jeep owned by one Mohd. Muzafar. He was carrying passengers by the said jeep between

Khultabad to Fulambri. Moreover, as per the prosecution case, the accused Police Naik on two occasions demanded bribe of Rs.200/Â from the

complainant Shaikh Kalimoddin (PWÂ1) to allow the complainant to carry the passengers by the jeep. First demand i.e. pre trap demand of bribe of

Rs.200/Â was made on 23.08.2003 at 04.00 pm by the accused. The second demand of bribe of Rs.200/Â was made by the accused on 26.08.2003 at

about 03.50 pm on the day of trap.

13. To prove first demand of 23.08.2003 the prosecution has relied upon the complaint (Exh.11), the evidence of complainant Shaikh Kalimoddin

(PWÂ1) and preÂtrap panchanama (Exh.16). It is stated in the complaint (Exh.11) that there used to be weekly Bazar at Fulambri on every Tuesday.

On the day of Bazar the accused used to take installment of Rs.200/Â from the complainant by stopping the jeep and he used to threat the

complainant that if no money is given to him, he would park the jeep in the police station and he would file case against him. Further it is stated in the

complaint that on 23.08.2003 on Saturday there was rush of passengers coming to Khultabad for Darshan of Bhadra Maroti and on that day at 16.00

hours while the complainant was taking passengers by the jeep from Khultabad to Fulambri near Deogiri Sugar Factory the accused stopped the jeep

and demanded installment of Rs.200/Â to the complainant. At that time the complainant told accused that he would ask Seth and he would give money

on the day of Bazar at Fulambri. Thereupon, the accused allowed him to go. Thereafter, the complainant told in this respect to the owner of jeep

Mohd. Muzafar. Mohd. Muzafar was not willing to give Rs.200/Â as installment on every Bazar day to the accused and he, therefore, told the

complainant to lodge complaint with the Anti Corruption Bureau, Aurangabad. The complaint further shows that therefore, the complainant went to

the office of Anti Corruption Bureau at Aurangabad and narrated complaint as above which was reduced into writing. As per said complaint the

accused was to accept the installment of Rs.200/Â​ on 26.08.2003 on KhultabadÂ​Fulambri road.

14. The above contents of complaint (Exh.11) cannot be read as substantive evidence. Those contents can be used for corroboration and to

contradict the complainant who has filed the complaint. Therefore, before relying or otherwise on the contents of complaint (Exh.11) it is necessary to

consider the evidence of the complainant.

15. The complainant Shaikh Kalimoddin (PWÂ1) in his evidence at Exh.10 as regards the first demand made by the accused to him on 23.08.2003

deposed in paragraph No.2 of his deposition as under:Â​

2. About a year ago Saturday on 23rd of English month while I was proceeding near the Devgiri Sakhar Karkhana by the above vehicle Barse

asked me whether I had brought the amount I told him that I would bring the amount on Tuesday by telling the owner of the vehicle. I told this fact to

Md.Mujaffhar who carried me to Naik of Anti Corruption at Aurangabad on Tuesday. I told the above facts to Naik. He reduced my complaint into

writing. I have signed that complaint. Now I am shown the complaint dated

26. 08.2003. It is the same, it bears my signature, its contents are true. It is at Exh.11. I have no dispute with accused Barse. There was money

transaction between myself and Barse occasionally, I used to obtain the hand loan of Rs.100/Â or Rs.200/Â from Barse. The demand made by Barse

on Saturday was to be paid by me towards the above vehicle as agreed per week. In case of non payment of the weekly 'Hafta' to Barse he used to

stop my vehicle and keep it idle.

16. Moreover, in the crossÂ​examination in paragraph 6 and 7 of his deposition the complainant (PWÂ​1) has deposed as under:Â​

6. It is true that I was taking the hand loan of some amounts from the Barse since long. I obtained many time handloan of some amounts from

Barse and returned to him the said amount and then again took and returned that amount whenever I needed. It is not true that on the day of this

incident I have not given the amount of Rs.200/Â to Barse as gratification. It is true that on 26.08.2003 I was to repay Rs.200/Â to Barse towards the

handloan obtained by me. It is true that even today also I am in due of Rs.200/Â to Barse. It is true that prior to 26.08.2003 Barse had made the

demand to me for repayment of Rs.200/Â. It is true that I could not get sufficient business and hence I could not repay the amount. It is true that prior

to 26.08.2003 I had told Barse I would bring the owner of the vehicle is and would repay the amount.

7. It is true that there was rush of people in the bazzar of Phulambri due to weekly Bazzar on 26.08.203. It is true that on the day also there was no

talk between myself and Barse about the payment of installments. Police did not record my statement on that day after Barse was taken into custody.

It is true that the complaint lodge by me against Barse was in Hindi language. It is true that I had got annoyed since Barse had give police language

while claiming Rs.200/Â​ to me. It is true that I have lodge the false complaint against Barse.

17. As per the prosecution case in the complaint (Exh.11) on 23.08.2003 on Khultabad Fulambri road at 04.00 pm on Saturday the accused made

first demand of bribe of Rs.200/Â as Hafta and the complainant told the same to the jeep owner Mohd. Muzafar and as per his instructions he went to

the office of Anti Corruption Bureau at Aurangabad and lodged the complaint (Exh.11). On oath as referred earlier the complainant deposed that he

told the fact of first demand made to him by the accused to Muzafar and Muzafar carried me to Naik of Anti Corruption Bureau at Aurangabad on

Tuesday and then he told above facts to Naik and he reduced the complaint (Exh.11) into writing. In the complaint (Exh.11) it is not stated that Mohd.

Muzafar owner of the jeep accompanied the complainant when he had gone to the office of Anti Corruption Bureau at Aurangabad on 26.08.2003 to

lodge the complaint. On the contrary, the complaint (Exh.11) shows that as per the advice of Mohd.Muzafar the complainant went to the office of

Anti Corruption Bureau at Aurangabad. Thus, there is no consistency in the evidence of complainant and the contents of complaint as to whether

Mohd. Muzafar owner of the jeep accompanied the complainant when he had gone to the Anti Corruption Bureau at Aurangabad to lodge the

complaint.

18. Moreover, in the complaint (Exh.11) as referred earlier the complainant has stated that he is not in enimical terms with the accused and he is

not having his personal financial transaction with the accused. As referred earlier in the examination inÂchief itself the complainant has stated that

he has no dispute with the accused. There was money transaction between him and the accused occasionally. He used to obtain handloan of

Rs.100/Â or Rs.200/Â from Barse/accused. The demand made by Barse/accused on Saturday was to be paid by him (witness). Moreover, as

referred earlier in Paragraph No.6 of his deposition the complainant has admitted that he was taking handloan from the accused, on 26.08.2003 he

was to repay Rs.200/Â to the accused towards handloan obtained by him and prior to 26.08.2003 the accused had made demand to him for repayment

of Rs.200/Â. Thus, there is no consistency in the evidence of the complainant and the complaint that there was no money transaction between the

complainant and the accused prior to the incident in this case.

19. Due to above inconsistencies in the evidence of complainant (PWÂ1) and the complaint (Exh.11) lodged by him and particularly when he

admitted that prior to 26.08.2003 the accused had made demands to him for repayment of Rs.200/Â handloan which was given to him by the accused

and he was to repay Rs.200/Â on 26.08.2003 evidence of complainant regarding first demand of bribe of Rs.200/Â made by the accused to him on

23.08.2003 is doubtful.

20. When as per the case of the prosecution the jeep which the complainant was running as driver on Khultabad to Fulambri road and in respect of

which bribe of Rs.200/Â was demanded by the accused was owned by one Mohd.Muzafar resident of Khultabad and when after the first demand

made by the accused to the complainant on 23.08.2003 the complainant informed the same to Mohd.Muzafar owner of the jeep and then when as per

evidence of the complainant he had gone to the Anti Corruption Bureau at Aurangabad on Tuesday and Mohd. Muzafar had carried him to the said

office the prosecution was required to examine Mohd.Muzafar owner of the jeep to make the court believe that really first demand was made by the

accused to the complainant on 23.08.2003 and after said demand the complainant informed the same to the owner of the jeep Mohd.Muzafar and then

said Mohd.Muzafar had taken the complainant to lodge complaint (Exh.11) in Anti Corruption Bureau at Aurangabad, when evidence of complainant

as regards first demand is doubtful as observed earlier. Moreover, the prosecution should have examined Muzafar being owner of the jeep because

the complainant driver of the jeep had no reason to pay any amount to the accused at his own as bribe to run jeep on Khultabad to Fulambri road to

carry passengers, without permission of owner of jeep. This is because in the complaint (Exh.11) itself, the complainant has stated that at the time of

first demand on 23.08.2003 he told accused that he would inform in respect of demand of Rs.200/Â made by the accused to him, to Mohd.Muzafar

owner of the jeep. Therefore, the prosecution should have examined Mohd.Muzafar owner of the jeep. Admittedly, the prosecution has not examined

Mohd.Muzafar owner of the jeep, though his statement was recorded by the PI Naik (PWÂ6) the Investigating Officer during investigation. Thus, the

prosecution has withheld material evidence of Mohd. Muzafar owner of the jeep who could have thrown light on the prosecution case as regards the

first demand made by the accused to the complainant of bribe of Rs.200/Â on 23.08.2003 and it was necessary on the back ground that the

complainant has admitted that on 26.08.2003 on the day of trap an amount of Rs.200/Â​ taken by him as a handloan was to repay the accused.

21. In the above circumstances merely because there is a reference in preÂtrap panchanama (Exh.16) regarding first demand that on 23.08.2003

the accused made demand of Rs.200/Â to the complainant, which is made on the basis of complaint (Exh.11), is of no help to the prosecution

especially when the evidence of complainant in respect of the said demand is doubtful as observed earlier.

22. In paragraph No.5 of his deposition the complainant (PWÂ1) has stated that he knows the accused since last 5 to 6 years and he resides at

Fulambri. His driving license and all the papers of the vehicle used to be up to date. The police have not filed any criminal action against him in respect

of this vehicle/jeep. He admitted that police have not made to stand his vehicle on the road at any time. If the jeep which the complainant was running

to carry passengers was not made to stand on the road by police any time, papers of the said jeep were up to date, no criminal action was filed against

the complainant in respect of jeep case of the prosecution regarding first demand of bribe of Rs.200/Â made by the accused to the complainant on

23.08.2003 by stopping the jeep on Khultabad to Fulambri road near Sugar factory is not believable. The above evidence suggests that there was no

occasion for accused to make demand on 23.08.2003 as alleged by the prosecution.

23. For all the reasons discussed above I hold that the complaint (Exh.11), the evidence of complainant (PWÂ1) referred to above and preÂtrap

panchanama (Exh.16) are not sufficient to state beyond doubt that on 23.08.2003 at 04.00 pm accused made initial/first demand of Rs.200/Â to the

complainant as alleged by the prosecution. As such I hold that the prosecution has failed to prove said first demand of bribe made by the accused to

the complainant.

24. As regards second demand of bribe made by the accused to the complainant (PWÂ1) is concerned, as per the prosecution case said demand

was made on the date of trap on 26.08.2003 at Fulambri at about 15.50 hours i.e. at about 03.50 pm. To prove said demand prosecution has relied

upon the evidence of complainant (PWÂ​1), Panch No.1 Keshav Jadhav (PWÂ​2) Shadow Panch, and Shaikh Nazimoddin (PWÂ​4).

25. Before considering above said evidence on second demand, it is necessary to refer the evidence of complainant in respect of procedure

followed by the Investigating Officer PI Naik (PWÂ6) while giving tainted currency notes to the complainant after they were smeared with

anthracene powder, which were to be handed over to the accused by the complainant after the second demand on the day of trap. In this respect the

complainant has stated thus:

On Tuesday he had gone to the office ACB, Aurangabad. Naik (PWÂ6) Police Inspector had called two panchas. He told that he had brought

Rs.210/Â and an amount of Rs.200 i.e. one currency note of 100, one currency note of 50, two currency notes of 20 and one currency note of 10

were given to Naik and anthracene powder was smeared to the said currency notes and then they were put in his left chest pocket of shirt. He as

well as both the panchas were given instructions by the PI Naik the Investigating Officer. He was specifically instructed to give said tainted amount to

the accused, if he would claim else not. Then he alongwith two panchas and Nazimoddin (PWÂ4) maternal uncle of Mohd. Muzafar owner of the

jeep proceeded in the jeep towards Fulambri.

26. Now let us consider the evidence of complainant (PWÂ1), PWÂ2 Shadow Panch and Shaikh Nazimoddin (PWÂ4) on the second demand on

the day of trap i.e. on 26.08.20063. The complainant (PWÂ1) has stated that at about 01.00 to 01.30 pm on that day he, two panchas, Shaikh

Nazimoddin, Pathan and one another person started from Office of Anti Corruption Bureau at Aurangabad by the jeep. Both panchas were sitting in

his jeep. They reached to Khultabad and then started towards Fulambri. They reached Fulambri. But they did not find accused Barse on way, then he

parked his jeep/vehicle and waited for arrival of the accused. Another vehicle was also parked at some distance. After 15 minutes accused came

there on motorcycle. He had uniform on his person and also had TÂshirt on it. Another jeep driver came there, paid Rs.200/Â to Barse /accused and

then went away. Barse took out a diary from his pocket and wrote some in it. He (witness) did not see what he wrote in diary. Thereafter, he

(witness), Shaikh Nazimoddin (PWÂ4) and one Panch went to Barse. Thereafetr, he introduced Shaikh Nazimoddin with Barse telling him that he

was the owner of the vehicle i.e. jeep. He told Barse to have talk about money with Shaikh Nazimoddin. Shaikh Nazimoddin talked and said that there

was no business for him. Then Barse told that he should pay whatever he had brought. Shaikh Nazimoddin then told him (witness) to pay an amount

whatever he had. He took out the amount and paid to Barse. The accused accepted the amount and kept in left chest pocket of his shirt.

Barse/accused counted those notes and put in his pocket. Then complainant gave signal. Then Naik came and caught hold Barse. Then

Barse/accused was made to sit into vehicle and panch witness was also made to sit into the vehicle. The complainant stated that he does not know

what happened thereafter since he was out of the vehicle.

27. Above is the only evidence of the complainant on second demand on the day of trap. Above evidence shows that the complainant, Shaikh

Nazimoddin and one panch, who must be PWÂ2 Shadow panch though the complainant has not specifically stated so, went to the accused after

parking the jeep at Fulambri after they saw that the accused came on motorcycle. This evidence shows that the complainant introduced Shaikh

Nazimoddin (PWÂ4) to the accused as a owner of the jeep and told the accused to have a talk with Shaikh Nazimoddin. Then there was talk between

them. Then on the say of Shaikh Nazimoddin the complainant paid amount to the accused. This evidence does not at all show that on the day of trap

on 26.08.2003 at about 15.50 hours the complainant asked the accused about his work of allowing him to carry passengers on Khultabad to Fulambri

road by the jeep and then accused made demand of Rs.200/Â to him. Said evidence further does not show that for the said work after meeting the

complainant, shadow panch and Shaikh Nazimoddin the accused demanded agreed bribe amount of Rs.200/Â to the complainant and thereupon the

complainant (PWÂ1) paid said amount to the accused. The evidence clearly shows that it is the Shaikh Nazimoddin who told the complainant to pay

the amount to the accused and then the complainant paid the amount to the accused. Even the complainant does not claim that Shaikh Nazimoddin told

him to pay Rs.200/Â to the accused and then he paid Rs.200/Â to the accused. Thus, the above referred evidence of complainant is not at all

sufficient to state that on the day of trap the accused demanded bribe amount of Rs.200/Â​ to complainant as per the prosecution case.

28. The next evidence on the second demand is of PWÂ2 shadow panch who was with the complainant (PWÂ1) all the while on the day of trap

after they had left office of Anti Corruption Bureau at Aurangabad for trap as instructed by PI Naik. PWÂ2 has stated that Naik (PWÂ6) instructed

him to be with the complainant Kalimoddin who was also instructed to hand over the amount to the accused on demand only. Thereafter, he has stated

all about giving of currency notes of Rs.200/Â smeared with anthracene powder to the complainant and that they proceeded to Fulambri by the jeep.

Material evidence of PWÂ2 Shadow Panch in respect of second demand is in paragraph 3 of his deposition and said material portion of his evidence

is reÂ​produced as under:Â​

“After a while that motorcyclist called Kalimoddin to him. Hence, Kalimuddin and thereafter Nijamuddin and thereafter myself all went to that

motorcyclist. That motorcyclists was Mr.Barse. I say so because his name was mentioned in the panchanama Exh.16. None told me there his name

to be Barse. The motorcyclist claimed the amount and Kalimuddin paid the amount. The motorcyclist asked as to whether the amount was brought.

Kalimuddin told that, he had brought the amount. Then motorcyclist asked to pay the amount. Accordingly, Kalimuddin put his right hand in his left side

chest pocket of his shirt and took out the anthracene powder applied notes of Rs.200/Â and handed over them to that motorcyclist. The motorcyclist

accepted those notes in his right hand put them in the left chest pocket of his inner uniform shirt. The motorcyclist also counted the notes and amount

in his hand. Now I again say that I do not remember as to whether that fellow put the notes in his covered ordinary shirt pocket or inner uniform shirt

pocket. Then Kalimoddin gave the agreed signal by lifting his hands as we do in case of lazyness and then Naik and his companions stood near by

area came to us and caught hold of that motorcyclist. That motorcyclist did not talk with Najimuddin in my presence. Thereafter we all carried that

motorcyclist in a jeep vehicle in the police Stn. At Fulambri. Prior to that, that motorcyclist was made to sit in the jeep vehicle. Nothing was done then

there. The motorcyclist told his name to be Jagannath Barse, after he was caught. After the motorcyclist was made to sit in the jeep vehicle, his

personal search was taken and some amount was found with him. Naik took out the amount from the pocket of that motorcyclist. The pocket from

where the amount was taken was the pocket of the uniform shirt and left chest pocket.â€​

29. From the above evidence of PWÂ2 it is seen that the motorcyclist i.e. the accused asked whether the amount was brought. Thereupon, the

complainant Kalimoddin told that he had brought the amount. Then motorcyclist /accused asked to pay the amount and accordingly complainant gave

tainted amount of Rs.200/Â to the accused. This evidence is not consistent with the evidence of complainant (PWÂ1) as the complainant has not

stated that the accused demanded amount to him and then he paid amount to accused. On the contrary the evidence of the complainant is that there

was talk between Shaikh Nazimoddin (PWÂ4) and the accused and on the say of Shaikh Nazimoddin he paid amount to the accused. Another aspect

to be noted is that PWÂ2 shadow panch has stated that the motorcyclist i.e. accused did not talk with Shaikh Nazimoddin in his presence. As

mentioned earlier the complainant states that Shaikh Nazimoddin had a talk with the accused. Thus, there is inconsistency in the evidence of

complainant and PWÂ​2 Shadow panch in respect of talk between Shaikh Nazimoddin and the accused before amount was paid to the accused.

30. Moreover, after PWÂ2 was declared hostile by the prosecution, the learned APP put certain leading questions to the said witness and he has

admitted that person sitting before the Court was the motorcyclist and was Barse/accused. Said Barse asked as to how much amount was brought, to

complainant Kalimoddin and Shaikh Nazimoddin. He stated that he does not remember that Kalimoddin said that he had brought Rs.200/Â as

installment as agreed. He admitted that thereafter Barse said that the amount should be paid and that accordingly the complainant Kalimoddin paid

that amount and then Barse put that amount in his TÂshirt pocket on his person. Further, PWÂ2 in answer to the question for what these Rs.200/Â‐

were to be paid to Barse, replied that the amount was to be paid weekly. He also admitted that said amount was to be paid as installment to allow

complainant/Kalimoddin to drive the jeep and said amount was paid to accused so that police should not take action against plying the jeep.

31. In the crossÂexamination on behalf of the accused PWÂ2 admitted that he had told to police only that after he, complainant and Shaikh

Nazimoddin went near Barse, Barse claimed amount and Shaikh Nazimoddin paid it to him. He further admitted that thereafter Barse said to Naik

when Naik caught hold him that he had not taken any bribe and that he has received back amount advanced by him. The above said testimony of

PWÂ2 is contrary to his evidence in examinationÂinÂchief that the complainant paid amount to the accused. So also, aforesaid evidence does not

show that on asking the complainant to the accused about his work the accused demanded bribe amount of Rs.200/Â as instructed to the complainant

by the Investigating Officer PI Naik (PWÂ​6).

32. In view of the inconsistencies noted earlier in the evidence of the complainant and PWÂ2 shadow panch and in view of the fact that the

evidence of PWÂ2 panch regarding demand of amount made by the accused to the complainant is shattered in the crossÂexamination as he stated

that Barse/accused claimed the amount and Shaikh Nazimoddin (PWÂ4) paid it to accused which is contrary to his evidence in

examinationÂinÂchief and when he stated that immediately the accused gave explanation to PI Naik that he received back the amount advanced by

him, his uncorroborated evidence regarding alleged second demand of amount is not sufficient to state beyond doubt that really on the day of trap i.e.

on 26.08.2003 accused demanded bribe of Rs.200/Â​ to the complainant as per the prosecution case.

33. The next is the evidence of Shaikh Nazimoddin (PWÂ4) which is relied upon by the prosecution to prove second demand made by the accused

on the day of trap. As per the prosecution case he was with the complainant and PWÂ2 shadow panch when the accused demanded bribe to the

complainant. His evidence as regards demand is concerned is that on 26.08.2003 they had left Office of Anti Corruption Bureau at Aurangabad by the

jeep and reached at Khultabad at 02.00 pm. They halted near Bombay Hospital, Khultabad. Thereafter the complainant collected some passengers

and thereafter they all proceeded to Fulambri. They reached there by 03.00 pm. Their vehicle was stopped near bus stand and they got down and

waited for a while.

After some time the police officer came there. The complainant gave Rs.200/Â to him, he accepted that amount. Thereafter, antiÂcorruption men

caught hold him. The complainant told him that the person caught was Police Officer. Then he and the complainant returned to Khultabad. He stated

that no talk took place between complainant Kalimoddin and accused in his presence. He stated that it did not happen that the complainant Kalimoddin

introduced him to accused saying that he was owner of the jeep and that the accused should talk to him about Hafta.

34. From the evidence of Shaikh Nazimoddin (PW 4) it can be said that the complainant Kalimoddin gave Rs.200/ to the accused and accused

accepted the said amount and there was no talk between the complainant and accused in his presence. Thus, though this witness was with the

complainant/PWÂ1 and PWÂ2 shadow panch when allegedly the accused made second demand on the day of trap i.e. on 26.08.2003 this witness

has not stated that the accused demanded bribe of Rs.200/Â to the complainant to allow the complainant to run the jeep to carry passengers and

thereupon the complainant paid said bribe amount to the accused as alleged by the prosecution. As mentioned earlier while discussing the evidence of

complainant/PWÂ1, PWÂ1 has stated that he had introduced Shaikh Nazimoddin to the accused as owner of jeep and there was talk between Shaikh

Nazimoddin and the accused, but this witness Shaikh Nazimoddin has not stated so as mentioned earlier. Another aspect to be noted is that this

witness Shaikh Nazimoddin claims that on 26.08.2003 he came to Aurangabad on the request of complainant Shaikh Kalimoddin and he accompanied

him to the office of Anti Corruption Bureau at Aurangabad. The complainant PWÂ1 has not stated in this respect in the complaint Exh.11 or while

depositing before the Court. Therefore, it is doubtful whether Shaikh Nazimoddin had really accompanied the complainant (PWÂ1) on the day of trap

at Fulambri. For the above reasons the evidence of Shaikh Nazimoddin (PWÂ4) is of no help to the prosecution to prove second demand allegedly

made by the accused to the complainant on the day of trap.

35. So far as recovery of tainted amount of Rs.200/ from the accused is concerned the evidence of PWÂ2 shadow panch shows that after the

accused was caught he was made to sit in the jeep. His personal search was taken and some amount was found with him. So also, PWÂ2 has

admitted that PWÂ3 Panch No.2ÂSudhir at the instance of PI Naik took out two bundles of notes and pocket diary from the pocket of TÂshirt on the

person of the accused. One of the bundles of currency notes was consisting of a note of Rs.100/Â, a note of Rs.50/Â, two notes of Rs.20/Â and a

note of Rs.10/Â. Number of all said notes were tallied with the numbers of notes noted down in the preÂtrap panchanama. Similarly PWÂ3 panch

No.2Â Sudhir has stated that on asking Naik he took out notes from the pocket of accused. They were notes of Rs.100/Â a note of Rs.50/Â, two

notes of Rs.20/Â each and one note of Rs.10/Â. Moreover, the evidence of PI Naik (PWÂ6) shows that currency notes as deposed by PWÂ2 and

PWÂ3 panchas were recovered from the accused. The evidence of above all witnesses in respect of recovery of above amount from the accused

has not been shattered in the course of their examination on behalf of the accused. Thus, on the basis of evidence of above witnesses and contents of

postÂtrap panchanama (Exh.17) in respect of recovery of aforesaid amount of Rs.200/Â from the accused it can be said that tainted amount of

Rs.200/Â was recovered from the accused. Naturally, therefore, it can be said that said amount was accepted by the accused. The accused also does

not dispute the said fact as it is clear from suggestion on his behalf to the PWÂ2 shadow panch that immediately after he was caught by PI Naik he

(accused) said he had not taken any bribe and that he has received back the amount advanced by him.

36. As observed earlier the prosecution has failed to prove first demand made by the accused to the complainant (PWÂ1) 23.08.2003 at about

04.00 pm and second demand made on the day of trap i.e. on 26.08.2003 at about 15.50 hours beyond reasonable doubt. But the prosecution has only

proved that tainted amount of Rs.200/Â was recovered from the accused. Therefore, now it is to be seen whether the presumption under Section 20

of the said Act would arise in favour of the prosecution when the prosecution has not proved the demands and only proved acceptance of amount by

the accused. Learned Advocate for the appellant has relied upon the decision in the case of P. Satyanarayana Murthy (supra) to support his argument

that mere possession and recovery of notes from the accused without proof of demand would not establish a offence under Section 7 as well as under

Section 13 (1)(d)(i)&(ii) of the Act as observed in paragraph Nos. 20 and 21 of the said decision. Thus, applying the ration laid down in the case of P.

Satyanarayana Murthy (supra) I hold that as in the present case the prosecution has failed to prove the initial demand/first demand dated 23.08.2003

made by the accused to complainant and second demand made on the day of trap i.e. 26.08.2003 mere recovery of currency notes from the accused

would not be sufficient to attract presumption under Section 20 of the said Act to state that the prosecution has proved the offences under Section 7

and under Section 13(1)(d) punishable under section 13(2) of the said Act.

37. It is held that the prosecution has failed to prove demand of illegal gratification made by accused to complainant beyond reasonable doubt and it

is proved that tainted amount was found in possession of accused. Therefore, it is to be seen whether the accused has given probable explanation of

said amount in the light of his defence. It is the specific defence of the accused that he had given handloan to the complainant (PWÂ1) from time to

time and as he used police language to the complainant for repayment of said handloan the complainant has filed false case against him.

38. As referred earlier in paragraph Nos. 6 and 7 of his deposition the complainant has in clear terms stated that he was taking handloan of some

amount from the accused since long. He obtained many times handloan of some amount from the accused and returned to him said amount. On

26.08.2003 i.e. on the day of trap he was to repay Rs.200/Â to the accused towards handloan obtained by him. He admitted that prior 26.08.2003

accused had made demand to him for repayment of Rs.200/Â and as he could not get sufficient business he could not repay the same amount. So

also, he stated that he was annoyed since accused had used police language while claiming Rs.200/Â to him, he lodged the false complaint against the

accused. Moreover, as referred earlier PWÂ2 shadow panch has admitted that accused said to Naik when Naik (PWÂ6) caught accused that he had

not taken any bribe and that he received back amount advanced by him. So also, in answer to question No.61 i.e. why prosecution witnesses are

deposing so? in the statement under Section 313 of the Criminal Procedure Code the accused has answered as under:Â​

“Kalimoddin had taken some hand loan from me. When I insisted him for its repayment in the police language he thached this false story. Naik

wanted to complete his such quota of cases and hence he took the help of Keshav Jadhav PWÂ2 and Sudhir Mahalpure PWÂ3 and involved me

falsely at the instance of Kalimoddin. At the instance of Naik, Keshav and Sudhir both panch witnesses are deposing false. Najimoddin PWÂ4 is the

relative of Kalimoddin and hence at his instance he is deposing so. Ramesh Pawar PWÂ5 had also taken some hand loan from me and he repaid the

amount to me on that dayâ€​

39. From the above evidence of complainant (PW 1), PWÂ2 shadow panch and answer to question No.61 in the statement under Section 313 of

the Criminal Procedure Code given by the accused, as the accused had give immediate explanation about the amount received by him I find that

defence of the accused that the complainant had taken some handloan from him and when he insisted for its repayment in police language the

complainant has falsely involved him is appearing probable and acceptable.

40. The trial Court in paragraph no.15 of the judgment observed that panch witness namely Keshav (PWÂ2) and Sudhir (PWÂ3) as well as

companion of complainant namely Shaikh Nazimoddin (PWÂ4) and Ramesh Pawar (PWÂ5) have turned hostile. Further the trial Court has observed

that the complainant Shaikh Kalomoddin (PWÂ1) has also not supported the prosecution whole heartedly and admitted almost all suggestions put to

him during the course of examination on behalf of the accused trying to dilute the prosecution story and to turn it in favour of the accused. However,

the trial Court only relying upon the evidence of PI Naik (PWÂ6) the Investigating Officer and on the basis of complaint (Exh.11) filed by the

complainant (PWÂ1) and pre trap panchanama (Exh.16) held that the prosecution has proved the offences against the accused with which he was

charged. It appears that according to the trial Court there is nothing on record to show as to why the complainant narrated all false story in complaint

(Exh.11) before PI Naik (PWÂ6) and abefore panchas (PWÂ2 & 3). For the reasons discussed earlier while appreciating the evidence of

complainant (PWÂ1), PWÂ2 shadow panch and Shaikh Nazimoddin (PWÂ4) it is observed that their evidence is not sufficient to state beyond doubt

that the accused made first demand on 23.08.2003 and second demand on the day of trap on 26.08.2003 due to inconsistencies noted in the evidence

of these witnesses. It is also observed that the contents of the complaint (Exh.11) cannot be read as a substantive evidence. It is observed that when

the complainant's evidence about demand is doubtful mere mention of first demand in preÂtrap panchanama (Exh.16) is of no help to the prosecution

case.

41. Another aspect to be noted is that when the evidence of complainant (PWÂ1) material witness of the prosecution is not sufficient to prove

demands made by the accused to him and admitted the defence of the accused of giving handloan to him and that an amount of Rs.200/Â was due to

him on the day of trap i.e. on 26.08.2003 and as the prosecution has not examined Mohd.Muzafar owner of the jeep and as such withheld material

piece of evidence at whose instance the complaint was lodged and when the defence of the accused is probable as observed earlier the observations

of the trial Court that the defence of the accused does not appear to be probable are not correct. As such I hold that the case of the prosecution is

doubtful and its benefit should go to the accused.

42. For all the reasons discussed above, I hold that the prosecution has failed to prove that on 26.08.2003 at Fulambri the appellant/accused a public

servant demanded and accepted Rs.200/Â from the complainant as a gratification as motive to allow the complainant to run the jeep without having

permit to carry passengers and obtain said gratification amount from the complainant by corrupt or illegal means for himself by abusing his position as

a public servant which amounts to criminal misconduct and failed to prove the offences under Section 7 and 13(1)(d) read with Section 13(2) of the

said Act against the accused beyond reasonable doubt and as such he is entitled to be acquitted by giving benefit of doubt. Therefore, the findings

recorded by the trial Court that the prosecution has proved aforesaid offences against the accused are not sustainable. Consequently, the impugned

judgment and order convicting and sentencing the appellant/accused for the aforesaid offences is liable to be quashed and set aisde by allowing the

appeal. In the result following order is passed.

ORDER

[a]Â The appeal is allowed.

[b] The impugned judgment and order dated 29.03.2005 in Special Case No.26/2003 (PC Act) passed by the IIÂSpecial Judge (PC Act) Aurangabad

convicting and sentencing the appellant/accused for the offences under Section 7 and Section 13(1)

(d)Â punishable under Section 13(2) of the Prevention of Corruption Act is hereby quashed and set aside.

[c] The appellant/accused Jagganath Divanrao Barse is acquitted of the offences punishable under Sections 7 and 13(1)(d) punishable under Section

13(2) of the Prevention of Corruption Act.

[d] The bail bond of the appellant stands cancelled.

[e] Fine amount as per the impugned judgment and order, if deposited by the appellant be refunded to him.

[f] Order regarding disposal of the Muddemal property passed by the trial Court is maintained.

[g] Record and proceeding in Special Case No.26/2003 be sent to the trial Court forthwith.