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Judgment
1]The appellant herein has challenged the judgment and order dated 12Â12Â2003 passed by the Court of Additional District and Sessions Judge,
Pusad (trial Court) in Special Case No.4 of 2000, whereby the appellant was convicted under Sections 7 and 13 (1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 [for short, 'the Act of 1988'] and he was sentenced to suffer rigorous imprisonment for six months and one year
and six months on the two counts and also to pay fine of Rs. 500/Â each for the said convictions. During the pendency of this appeal, the appellant
died, due to which the appeal abated but, by order dated 15Â02Â2010, the abatement was set aside and the son of the deceased appellant was
permitted to prosecute this appeal. Accordingly, this appeal is listed for final hearing before this Court.
2] The prosecution case in brief was that the accused (deceased appellant) was working as Junior Clerk in Upper Painganga Project, SubÂDivision
No.3, Isapur, where the complainant (PWÂ1) Ganpat Kasture was working as a Fitter. It was the case of the complainant that he required a loan
from his General Provident Fund (GPF) account as his wife was ill and that for the said purpose he had submitted an application in the first week of
February, 2000. He had requested for a loan of Rs. 15,000/Â. It was the case of the complainant that he went to meet the accused on 27Â02Â2000,
to enquire about the fate of his loan application. The accused demanded a sum of Rs. 200/Â so that the accused could get the application of the
applicant approved from the Divisional Office. When the complainant showed his inability to pay the said amount, the accused allegedly insisted and
demanded the said amount of Rs. 200/Â. Thereafter, on 06Â03Â2000, the complainant (PWÂ1) allegedly again met the accused and made enquiry
about his loan application. When the accused again asked for money, the complainant said that he would bring the money on the next day.
3] As the complainant (PWÂ1) was not willing to give the aforesaid amount towards illegal gratification to the accused, on 07Â03Â2000, he visited
the office of the Anti Corruption Bureau (A.C.B.) at Yavatmal and submitted the written complaint (ExhibitÂ9) to the concerned officer of the
A.C.B. office. On the basis of the complaint, preparations were made for apprehending the accused red handed by laying a trap. The currency notes
for the aforesaid amounts of illegal gratification were smeared with Phenolphthalein powder and other preparations for executing the trap were
undertaken. One Anil Ghode was to accompany the complainant (PWÂ1) at the time of execution of trap. The said Anil Ghode was the shadow
witness (PWÂ2). It was the case of the prosecution that the said trap was executed in the office of the accused on 07Â03Â2000 in the evening and
that when the complainant (PWÂ1) accompanied by the shadow witness (PWÂ2) visited the office of the accused, as the complainant (PWÂ1) made
enquiry about his loan application, the accused made the aforesaid demand of Rs. 200/Â which PWÂ1 paid to the accused in the presence of shadow
witness (PWÂ2). Upon pre decided signal being given by the complainant (PWÂ1), raiding party of the A.C.B. immediately reached the spot and
apprehended the accused. Thereafter, the post trap panchanama was prepared and on the basis of aforesaid material, First Information Report was
registered against the accused and he was prosecuted for having committed offences under the provisions of the Act of 1988.
4] In order to prove its case, the prosecution examined seven witnesses. (PWÂ1) was the complainant, (PWÂ2) was the shadow witness, (PWÂ3)
was the sanctioning Authority since the accused was a public servant, (PWÂ4) was a person who maintained the Outward and Inward Register at
the office of the Upper Painganga Project, SubÂDivision No.3, (PWÂ5) was the Assistant Engineer of the said project, (PWÂ6) was the
Investigating Officer and (PWÂ7) was a Police Constable who had carried the material pertaining to the execution of trap for analysis.
5] In his defence, the accused examined a defence witness viz; Sheikh Muzamil Sheikh Mustafa, another Fitter who was working in the same office.
On the basis of the evidence of the prosecution witnesses, it was claimed by the prosecution that the case against the accused had been proved
beyond reasonable doubt while the accused contended before the trial Court that there was no demand of illegal gratification on his part and that the
amount of Rs. 200/Â in question pertained to charges required for binding of service book of the complainant and that this aspect was proved by the
evidence of defence witness. But, on the basis of the evidence and material on record, the trial Court came to the conclusion that the case against the
accused was proved beyond reasonable doubt. In fact, the trial Court held that the accused had failed to rebut the presumption that operated against
him under Section 20 of the Act of 1988. It was found that even if the accused, as a Junior Clerk, could have had no power or authority to grant or
refuse the loan application of the complainant, the demand of illegal gratification had been proved and when the acceptance of the said currency notes
pertaining to illegal gratification was indeed proved by sufficient evidence and material on record, the presumption operated against the accused which
was not rebutted and that therefore, the accused deserved to be convicted and sentenced in the aforesaid manner.
6] Heard Counsel for the parties. Shri S.G. Loney, learned Counsel appearing on behalf of the accused (deceased appellant) submitted that there was
material difference between the evidence of the complainant (PWÂ1) and the shadow witness (PWÂ2) as regards the manner in which the accused
interacted with the complainant at the time when the trap was executed. It was submitted that the evidence of the shadow witness (PWÂ2) did not
corroborate that of the complainant (PWÂ1) on material aspects and that therefore, the accused could not have been convicted for offences under the
Act of 1988. It was pointed out that the complainant (PWÂ1) himself had voluntarily stated in his cross examination that he was Secretary of the
Workers Union in the concerned office. This demonstrated that he was not a poor labour who was not aware about the manner in which loan
applications were processed or about the extent of power and authority of the accused who was merely a Junior Clerk. It was contended that the
presumption under Section 20 of the Act of 1988 was rebuttable and that said rebuttal was to be demonstrated on preponderance of probabilities on
behalf of the accused and that sufficient material was placed on record to rebut the presumption in the present case. It was pointed out that even in
the statement of accused recorded under Section 313 of the Code of Criminal Procedure, 1973, the accused had clearly stated that the amount of Rs.
200/Â in the present case was received by him in connection with the charges for binding of service book of the complainant (PWÂ1) and that there
was indeed such a practice of binding of service book, which was brought on record by way of examining the defence witness. It was submitted that
in the first place the prosecution had failed to prove demand of illegal gratification by the accused, which was a sine qua non and secondly that the
accused had placed on record sufficient material to rebut the presumption under Section 20 of the Act of 1988, if at all it operated in the facts and
circumstances of the present case. The learned Counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of Pannalal
Damodar Rathi vs State of Maharashtra, reported at (1979) 4 SCC 526, State of Kerala and another vs C.P. Rao, reported at (2011) 6 SCC 450, P.
Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh and another, reported at (2015) 10 SCC 152, Mukhtiar Singh (since
deceased through his L.R. vs State of Punjab, reported at 2017(7) Scale 702, Suraj Mal vs State (Delhi Administration), reported at (1979) 4 SCC 725
and C.M. Girish Babu vs CBI, Cochin, High Court of Kerala, reported at (2009) 3 SCC 779.
7] In addition, the learned Counsel further relied upon a recent judgment of this Court in the case of Baban s/o Jaisingh Rathod thr Lrs. Vs State
passed in Criminal Appeal No.784 of 2008.
8] Per contra, Shri Vishal Gangane, learned APP appearing on behalf of the State submitted that even if there was some difference in the evidence of
the complainant (PWÂ1) and the shadow witness (PWÂ2) pertaining to the manner in which the demand of illegal gratification was made by the
accused in the present case, it was not a major discrepancy and that it did not adversely affect the prosecution case. It was further submitted that
although it had come on record that the complainant (PWÂ1) was the Secretary of the Workers Union, there was nothing to support the suggestion
made on behalf of the defence that there was certain animosity between the accused and the complainant (PWÂ1) as being Secretary of the Workers
Union, he was seeking transfer of the accused from the post occupied by him. It was submitted that merely because the accused was not the person
having the power or authority to grant or refuse a loan, the prosecution case could not be discarded. It was further submitted that the defence witness
was not believable because he merely stated about alleged prevailing practice of binding of service book and charges collected by the accused for the
same and that there was no supporting material placed on record by the defence for such a theory to be accepted. It was submitted that when
demand of illegal gratification and acceptance of the same was proved beyond reasonable doubt against the accused, the presumption under Section
20 of the Act of 1988 operated in full force and therefore, the conviction and sentence imposed by the trial Court was justified.
9] It is no doubt true that once acceptance of tainted currency notes, as in the present case, stands proved, presumption under Section 20 of the Act of
1988 does operate against the accused. But, no presumption can be absolute and every presumption is rebuttable. A presumption can be rebutted upon
the accused placing on record sufficient material to prove his defence on a preponderance of probabilities. Therefore, even if the prosecution in the
present case was successful in proving that the accused had indeed accepted the tainted currency notes, it would still have to be examined whether
there has been sufficient material shown that the said amount was towards illegal gratification and that the accused had indeed made demand in
respect thereof.
10] The learned Counsel appearing for the accused (deceased appellant) has placed reliance on the judgments of the Hon'ble Supreme Court to
contend that if there was material variance in the evidence of complainant and the shadow witness as regards the demand of illegal gratification, it
must lead to the conclusion that the foundational fact of demand was not proved by the prosecution and that therefore, it would be unsafe to convict
an accused charged with offences under the provisions of the Act of 1988. In this context, it would be appropriate to refer the observations made by
the Hon'ble Supreme Court in the case of Mukhtiar Singh (supra), which reads as follows: Â
“14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now
engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to
prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is
accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that
mere recovery by itself of the amount said to have been paid by way of illegal gratification 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.
In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining 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 Section 13(1) (d) (i)
and (ii) of the Act. It was recounted as well 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. Not only the proof of demand
thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as
well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana
Murthy (supra) on a survey of its earlier decisions on the preÂrequisites of Sections 7 and 13 and the proof thereof summed up its conclusions as
hereunder:
“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in
absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery
thereof, dehors 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 and 13 of the Act would not entail his conviction thereunder.â€
                    (emphasis supplied)â€
11] The aforesaid position of law shows that it is indispensable that the prosecution proves demand of illegal gratification in order to establish a charge
under Sections 7 and 13 of the Act of 1988. It has been also held in the above mentioned judgment of the Hon'ble Supreme Court that even if there is
a stray query in respect of the demand of money by an accused when a trap is executed, it would still not implicate the accused until it is proved with
cogent evidence on record that the demand of money was towards illegal gratification. In order that such a proof is placed on record by the
prosecution, the evidence of the complainant and shadow witness assumes significance. If there is variance in the versions given by the complainant
and the shadow witness, it would be unsafe to accept that the demand of money was a demand of money pertaining to illegal gratification. Therefore,
it is necessary that the evidence of the complainant is corroborated by that of the shadow witness and other evidence and material on record. In this
regard, the learned Counsel appearing on behalf of the accused (deceased appellant) is justified in relying upon the judgment of the Hon'ble Supreme
Court in the case of Pannalal Rathi (supra).
12] In this backdrop, it would be necessary to examine as to whether in the present case the prosecution was able to place on record sufficient
material to prove that the amount found in the hands of the accused came to him in pursuance of a demand for illegal gratification. A perusal of the
evidence of the complainant (PWÂ1) shows that he has described the manner in which the accused made demand and accepted the amount of Rs.
200/Â when the trap was executed on 07Â03Â2000. The complainant (PWÂ1) has stated in the evidence as follows: Â
“22. Myself and Ghode went near the table where the accused was usually sitting. The accused was not present there. We waited for the accused
there. After some time the accused was coming, I told the panch no.1 Ghode that the person coming wearing cap was the accused. The accused sat
in his chair. Myself and Ghode went near the accused and sat by the side of table on a bench. I asked the accused if he has brought my G.P.F. bill
after getting approved. He told me that he had not brought the bill. He told me that I should give him Rs. 200/Â and he would go and bring my G.P.F.
bill getting it approved. I took out the bribe money with my right hand from my left pocket of the shirt, and hold them before the accused. The accused
took that money and kept in the pocket of his shirt. He took them by right hand. I came out, I unfolded the sleeves of my right hand by my left hand
and raised that hand, and gave signal.â€
13] As against this, the shadow witness (PWÂ2) has described the same sequence of events as follows: Â
Myself and P.W.1 Ganpat were asked to go in the office of accused. We went to the office of accused. The other members of raiding party were
following us. The accused was not in his office. We waited for the accused. After sometime the accused came. The P.W.1 Ganpat told me about the
accused. The accused sat in his chair. We sat before him on a bench. The P.W.1 Ganpat then asked the accused about what has happened to his
G.P.F. The accused said that something is required to be given for work. The accused said if he has brought the money as said yesterday. P.W. 1
Ganpat said yes. P.W.1 Ganpat took out money from his left pocket of his shirt and gave it to the accused. The accused took it by right hand and kept
it in his shirt pocket. P.W.1 Ganpat went outside the office. I stood there.â€
 14] A perusal of the above quoted two versions of the same sequence of events by the complainant (PWÂ1) and the shadow witness (PWÂ2)
shows that while the complainant has stated that the accused told him that he had not brought his GPF bill and he told the complainant that he should
give Rs. 200/Â and he would go and bring the GPF bill after getting it approved the shadow witness (PWÂ2) has stated that upon the complainant
asking the accused about what had happened to his GPF, the accused had said something was required to be given for the work and the accused
asked if the complainant had brought the money as said yesterday. The shadow witness (PWÂ2) did not mention the figure of Rs. 200/Â. There is a
clear difference in the two versions, particularly when the shadow witness (PWÂ2) was in no way concerned with the alleged demand made by the
accused on the earlier day i.e. 06Â03Â2000 when only the complainant (PWÂ1) and accused were present. Since there is no corroboration of the
first demand alleged to have been made on 06Â08Â2000, it became all the more necessary that there was corroboration as regards the demand made
on the day when the trap was executed. There ought to be unimpeachable evidence on the date of execution of the trap to corroborate the claim made
by the complainant with particular reference to demand being made of illegal gratification. Mere reference to money or query made in that regard
would not amount to corroboration of the case of the prosecution.
15] The above difference in the versions given by the complainant (PWÂ1) and the shadow witness (PWÂ2) becomes all the more significant when
the defence of the accused is appreciated. The defence of the accused in the present case was that although he had accepted the aforesaid amount of
Rs. 200/Â from the complainant (PWÂ1), it was towards charges for binding of service book, which was a practice prevalent in the office. In this
regard, the defence witness Sheikh Muzamil Sheikh Mustafa, a fitter working in the same office, was also examined in support of the defence of
accused. This witness stated about the fact that such practice was prevalent and that he and other employees of the office including the complainant
had got their service books bound. It was very much stated in the evidence about charges for binding of service book, as contended on behalf of the
accused. In the cross examination of this witness, there is nothing to suggest that he was not an employee of the same office.
16] Apart from this, a crucial aspect of the present case is that in the cross examination, the complainant (PWÂ1) himself has stated that he was the
Secretary of the Workers Union. Being an important office bearer of the Workers Union, it is difficult to accept that he was not aware about the
power and authority of the accused who was a mere Junior Clerk and that he was not aware about the manner in which loan applications were
processed in the office. It is hard to accept that the Secretary of the Workers Union would agree to pay illegal gratification to a Junior clerk in the
office under the mistaken impression that the Junior Clerk did have power and authority to process or approve the loan application. This fact also
demonstrates that the defence raised on behalf of the accused is a probable defence.
17] The trial Court has proceeded on the basis that the presumption under Section 20 of the Act of 1988 operated against the accused in the present
case and that there was insufficient material brought on record by the accused to rebut the presumption. The trial Court has taken note of the fact that
the complainant (PWÂ1) was the Secretary of the Workers Union but this crucial fact has not been appreciated in the correct perspective by the trial
Court. In fact, the only aspect examined in this context by the trial Court is that the accused failed to show that the complainant (PWÂ1) was in any
manner concerned with the attempts of the employees to have the accused transferred and that in that context the whole grievance was raised by the
complainant (PWÂ1). Apart from this, the trial Court has failed to appreciate the discrepancy in the evidence of the shadow witness (PWÂ2) as
compared to the version of the complainant (PWÂ1). The trial Court has proceeded on the basis that when the accused was indeed caught red
handed in a trap case, the quality of evidence of the shadow witness (PWÂ2) as regards the demand of illegal gratification was sufficient. The trial
Court failed to appreciate and apply the law as laid down by the Hon'ble Supreme Court and reiterated by this Court in the aforesaid recent judgment
in the case of Baban Rathod (supra), while passing the impugned judgment and order.
18] Another relevant aspect of the present case is that there was evidence of (PWÂ5) Assistant Engineer of the office on record which demonstrated
that the loan application of the complainant (PWÂ1) was very much processed at the Divisional Office at Nanded. It cannot be accepted that
although the complainant was Secretary of the Workers Union he held the impression that the entire processing and approval was in the hands of the
accused who was merely a Junior Clerk in the office. Thus, on an overall analysis of the oral and documentary evidence on record, particularly the
evidence of the complainant (PWÂ1), shadow witness (PWÂ2), Assistant Engineer (PWÂ5) and the defence witness Sheikh Muzamil Sheikh
Mustafa. It is evident that the basic foundational fact of demand of illegal gratification by the accused in the present case was not established by the
prosecution beyond reasonable doubt. As a result, the presumption would not get triggered against the accused in the present case. Even otherwise,
there was sufficient material placed on record on behalf of the accused to show that acceptance of the aforesaid amount of Rs. 200/Â pertained to
some other work as indicated in his defence, for which the defence witness was examined. This was quite apart from the fact that proof of mere
acceptance of the said tainted currency notes would not ipso facto lead to conviction of the accused under the provisions of the Act of 1988.
19] In the light of the above, it becomes evident that the impugned judgment and order passed by the trial Court is not sustainable. Hence, this appeal
is allowed. The impugned judgment and order passed by the trial Court is set aside and it is held that the prosecution failed to prove its case against the
accused.