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Judgment
By this appeal, the appellant has challenged judgment and order dated 30.08.2003, passed by the Special Judge (Constituted under the provisions of
Prevention of Corruption Act), Wardha (Trial Court) in Special Case No.2 of 1997, whereby the appellant was convicted under Section 7, 13(1)(d)
and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rupees One
Thousand.
The case of the prosecution in brief was that the son and daughter of complainant Shrikant Shende (PW1) were studying in a government school
called Shasakiya Abhyas Shala, Wardha where the appellant (accused) was a teacher. In the year 1994Â95, the daughter of the complainant had
failed in the second standard and it was the case of the prosecution that the appellant had been conveying messages to the complainant repeatedly
through the children to meet him. On this basis, the complainant allegedly went to the school and met the appellant when the appellant claimed that
he could help the complainant and his children and in that context he demanded an amount of Rs.1,200/ for expenditure. But, the complainant
stated that he could afford only Rs.600/ considering his financial position. It was alleged that the appellant directed the complainant to bring the
said amount in the school either on 09.04.1996 or 12.04.1996. The complainant then claimed that he visited the school on 12.04.1996 informing the
appellant that he could not manage the amount of Rs.600/Â, whereupon the appellant allegedly asked the complainant to at least pay Rs.100/Â on that
day and then pay the remaining amount of Rs.500/ on 16.04.1996. The complainant claimed to have paid Rs.50/ to the appellant and it was
agreed that the amount of Rs.550/Â would be paid on 16.04.1996 for the purpose of passing the children of the complainant in the annual examination.
On this basis, the complainant submitted a written complaint before the Anti-Corruption Bureau on 15.04.1996, on the basis of which, the
Investigating Officer (PW6) laid a trap for the appellant.Â
On 16.04.1996, the complainant went along with panch no.1 (Shadow witness Mr.Kathane) to meet the appellant in the school. The complainant
introduced said Mr.Kathane as the maternal uncle of his children. It was claimed that the appellant took attendance of both the classes in which the
complainant’s children were studying and told the children to leave the classrooms and thereafter, he enquired with the complainant as to whether
his work had been done, to which the complainant allegedly replied in the affirmative. Thereupon, the complainant handed over the bribe amount of
Rs.550/Â to the appellant who accepted the same and kept it in the attendance register, which was then kept in a drawer of a desk in the
classroom. It was then claimed that the complainant along with the said panch no.1 (Shadow witness Mr.Kathane) came out of the school building
to the parking area where the complainant gave the preÂdecided signal to the raiding party, upon which the Investigating Officer (PW6) immediately
rushed to the spot along with panch no.2 (PW3) in order to complete the process of trapping the appellant redÂhanded.
It was claimed that the appellant told the raiding party about the fact that he had kept the bribe amount in the attendance register in the desk in one
of the classrooms and then the procedure of pouring sodium carbonate solution on the hands of the complainant, the accused, the bribe amount and the
register was conducted. It was claimed that the pouring of the said solution resulted in change of colour and this was sufficient material to show the
complicity of the appellant. The seizure and spot panchanamas were conducted and offences were registered against the appellant under the said
provisions of the Prevention of Corruption Act, 1988.
On the basis of the aforesaid registration of offences, investigation was undertaken and the appellant was charged for the said offences. The
prosecution examined six witnesses to prove its case. PW1 was the complainant himself, PW2 was the police constable who had carried the
material from the spot of the trap for chemical analysis, PW3 was the panch no.2 accompanying the raiding party, PW4 was the police officer who
had registered the complaint, PW5 was the officer who had sanctioned prosecution of the appellant and PW6 was the Investigating Officer. It is
significant that the panch no.1 (Shadow witness Mr.Kathane) died during the pendency of the trial and he could not be examined as a prosecution
witness.
As a result of the death of panch no.1 (Shadow witness Mr.Kathane), the evidence of the complainant (PW1) was the only evidence before the
Court in order to prove the initial demand made by the appellant on 04.04.1996 and 12.04.1996 and even for demand allegedly made on 16.04.1996,
when the trap was executed. In the statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.), the appellant gave an
explanation that he was falsely implicated by the complainant because his children had failed in the examination and since the appellant had refused to
help the complainant in that regard, he was upset and he created a story to trap the appellant.
On the basis of the aforesaid oral and documentary evidence on record, the trial Court passed the impugned judgment and order. On the question
of sanction, the trial Court found that there was sufficient documentary evidence placed on record to show that the Deputy Director of Education
(PW5) was indeed the appointing authority of the appellant and that he had accorded valid sanction for prosecution of the appellant. On the merits of
the case, the trial Court found that although the panch no.1 (Shadow witness Mr.Kathane) had died and there was solitary evidence of only the
complainant, it was sufficient to prove the prosecution case. It was found that certain discrepancies in the evidence of the complainant (PW1),
PW3 and PW5 were not significant and that they did not adversely affect the prosecution case. The trial Court came to the conclusion that the
prosecution had been able to prove the demand of illegal gratification by the appellant and its acceptance, thereby holding that the appellant was liable
to be convicted for the aforesaid offences. On this basis, the trial Court convicted and sentenced the appellant in the aforesaid manner.
Mr.P.R. Agrawal, learned counsel appearing on behalf of the appellant submitted that there was absolutely no material on record to prove the initial
demand of illegal gratification by the appellant either on 04.04.1996 or on 12.04.1996, as claimed by the complainant. It was submitted that there
was no evidence brought on record by the prosecution in that regard. As regards demand allegedly made by the appellant on 16.04.1996, when the
trap was executed, according to the learned counsel, there was no evidence other than bare statement of the complainant in his examinationÂinÂchief
that the appellant had asked him as to whether his work had been done. In crossÂexamination, the complainant had conceded that he had not stated
this to the police when his statement was recorded. According to the learned counsel, this was fatal to the prosecution case. Apart from this, it
was pointed out that PW3 (panch no.2) was not present when the alleged payment of bribe amount was made by the complainant to the appellant and
that the evidence of the Investigating Officer (PW6) also demonstrated that there were serious lacunae in the investigation and the evidence placed on
record on behalf of the prosecution.
It was also pointed out that PW3 had admitted in his evidence that he had read his statement made to the police before deposing in the Court and
that this had rendered the evidence of the said witness unreliable. On this basis, it was pointed out that the impugned judgment and order was liable
to be set aside. Learned counsel placed reliance on the judgments of this Court in the case of Sharad Shirbhate Versus State of Maharashtra
(2007 ALL MR (Cri.) 252) and in the case of Suresh Ashtankar Versus State of Maharashtra & Another (2014 ALL MR (Cri) 4243) as also
the judgments of the Hon’ble Supreme Court in the case of B.Jayaraj Versus State of Andhra Pradesh [(2014) 13 SCC 55] and MukhtiarsinghÂ
Versus State of Punjab (2018 (1) Mh.L.J. (Cri) 1).
On the other hand, Mrs.G.R. Tiwari, learned Additional Public Prosecutor appearing on behalf of the State, submitted that although there was
evidence of only the complainant (PW1) to prove the prosecution case, it was sufficient when read along with the evidence pertaining to seizure of the
currency notes pertaining to the bribe amount showing that the prosecution case had been proved beyond reasonable doubt. It was contended that
only because the panch no.1 (Shadow witness Mr.Kathane) had died, it would not necessarily accrue to the benefit of the defence. On this basis, it
is submitted that the appeal deserves to be dismissed.
In the present case, since the appellant was a public servant, the question of sanction for his prosecution was relevant but, no serious
arguments/submissions were made on behalf of the appellant as regards the validity of the sanction order. Even otherwise, a perusal of the
documentary evidence on record and the oral evidence of the sanctioning authority, (PW5)ÂDeputy Director of Education, demonstrates that there
was indeed valid sanction for prosecution of the appellant. It is apparent from the documents placed on record that the appointing authority of the
appellant was the Deputy Director of Education and the sanction was indeed granted by the said authority, upon due application of mind. Therefore,
no fault can be found with the finding rendered by the trial Court in this regard in the impugned judgment and order.Â
As regards merits of the case, the proof of the prosecution case beyond reasonable doubt against the appellant hinges only on the solitary evidence
of the complainant (PW1). This is because the panch no.1 (Shadow witness Mr.Kathane) for the trap laid by the raiding party, died and he could
not be examined by the prosecution. Panch no.2 (PW3) was not actually present in the classroom where the currency notes pertaining to the bribe
amount were allegedly paid by the complainant to the appellant. Therefore, the evidence of the complainant (PW1) needs to be examined in detail
to ascertain whether the prosecution has been able to prove its case against the appellant.
A perusal of the evidence of the complainant (PW1) shows that he has indeed claimed in his examinationÂinÂchief that the appellant made
demand for illegal gratification on 04.04.1996 and 12.04.1996, due to which he had submitted the written complaint to the Anti-Corruption Bureau on
15.04.1996, leading to the laying down of the trap. He further claimed that on the date of the incident, i.e. on 16.04.1996, the appellant had enquired
from him whether he had done his work and that this was a signal towards demand of the bribe amount which was paid by the complainant to the
appellant. But, in the crossÂexamination, the said witness has conceded that he had never stated the said fact of demand at the time of the trap before
the police. There are other omissions which have been brought on record, which included the settling of the alleged bribe amount at Rs.600/ and
that the appellant had allegedly expressed resentment on the complainant having brought another person (panch witness, i.e. Shadow witness
Mr.Kathane) with him on the date of the incident. Another crucial aspect of the evidence of the complainant (PW1) is that in the crossÂ‐
examination he stated that he did shake hand with the appellant, but he immediately retracted from the same and claimed that he had simply offered
Namaskar. This has a bearing on the present case.
It is significant that the evidence of the Investigating Officer (PW6) and the evidence of the other panch (PW3) has not brought on record any
material to support the claim of the complainant (PW1) that the appellant had made demands of illegal gratification on 04.04.1996 and 12.04.1996.Â
In fact, the Investigating Officer (PW6) has conceded to the fact that he had not made any investigation in respect of the same. Thus, there is no
material on record, other than the statements of the complainant (PW1) in this regard. In the absence of corroboration of the said statements made
by the complainant (PW1), it is difficult to accept that the initial demands said to have been made by the appellant on 04.04.1996 and 12.04.1996, stood
proved.
Therefore, the only demand allegedly made by the appellant was on the date of the trap, i.e. 16.04.1996. As per the complainant (PW1), the
appellant asked him as to whether he had done the work which was asked by the appellant and that this was the demand towards illegal gratification
by the appellant. Even this was stated by the complainant (PW1) for the first time in Court and in the crossexamination he had conceded to the fact
that the same did not find mention in the statement made by him before the police. This indicates that the aforesaid claim of the complainant (PW1)
was an improvement, as the panch no.1 (shadow witness Mr.Kathane) was not examined by the prosecution and there was no other witness to the
aforesaid alleged demand made by the appellant on 16.04.1996 at the time when the trap was executed by the appellant. The evidence of panch
no.2 (PW3) starts from the point when even according to the complainant (PW1), the appellant along with the complainant and the panch no.1
(shadow witness Mr.Kathane) came out of the building towards the parking area. Therefore, evidence of PW3 is also of no avail to the prosecution in
order to prove the fact of demand of illegal gratification by the appellant on 16.04.1996, at the time when the trap was executed. The solitary
evidence of the complainant (PW1), in the light of the fact that it was clearly an improvement made before the Court by the said witness, does not
appear to be reliable to prove the case of the prosecution that the appellant had indeed demanded the amount towards illegal gratification from the
complainant.
In this context, the judgments relied upon by the learned counsel appearing on behalf of the appellant become relevant. In the case of
B.Jayaraj Versus State of Andhra Pradesh (Supra), the Hon'ble
Supreme Court has held as follows:Â
“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute
the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt
that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of
this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. 8. In the
present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not
examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same
was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complint (Ext. PÂ‐
11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. PÂ‐
11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are,
therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the
accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact
such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of
demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is
concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant
to obtain any valuable thing or pecuniary advantage cannot be held to be established.â€
In the case of Mukhtiar Singh Versus State (Supra), the Hon'ble Supreme Court has held 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, 2009(4) Mh.L.J. (Cri.)(S.C.) 465 = (2009) 6 SCC
587, 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 (2011) 6 SCC 450 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.
 15. In P.Satyanarayana Murthy (supra), this Court took note of its verdict in B.Jayaraj vs. State of A.P., 2014 MhLJ Online (Cri)(S.C.) 33 =
(2014) 13 SCC 55 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 prerequisites of sections 7 and 13
and the proof thereof summed up its conclusions as hereunder:Â
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€
The aforesaid position of law makes it sufficiently clear that mere acceptance of alleged bribe amount by the accused is insufficient to prove the
case of the prosecution under the provisions of the Prevention of Corruption Act, 1988 and that proof of demand of illegal gratification is a sine qua
non. In the present case, at worst, even if the evidence of prosecution on record is accepted, the fact of demand of illegal gratification by the
appellant has not been proved.
A perusal of the evidence of the Investigating Officer (PW6) also shows that there is scant evidence as regards alleged demand of illegal
gratification by the appellant. In fact, the said witness has conceded to the fact that he did not make any investigation as regards the initial demands
of illegal gratification said to have been made by the appellant on 04.04.1996 and 12.04.1996. The omissions in the evidence of the complainant
(PW1) have also been put to the said witness, i.e. the Investigating Officer (PW6) and they have been proved.
As regards the evidence of panch no.2 (PW3), he has stated in the crossÂexamination as follows:Â
“7. I have mentioned the short notes on the summons received by me regarding the said trap. At the time of deposing I had kept the said
summons with me in my hand. The copy of my statement before police was also supplied to me alongwith the summons. I have also brought
copy of my statement with me in my bag. Before adducing evidence, I had gone through the copy of statement.â€
The aforesaid admission made by the said witness makes his evidence unreliable. A learned Single Judge of this Court in the case of SharadÂ
Versus State (Supra) in this context has held as follows:Â
“10. The learned counsel for the appellant further submitted that in this case, the evidence of complainant P.W.1 Pundlik in respect of demand and
acceptance of the bribe on 14Â07Â1987 did not receive any trustworthy corroboration from the evidence of P.W.2 Prabhakar, the panch witness.Â
In para 11 of his deposition, the said Prabhakar admitted that he was attending the Court for giving evidence since 01Â07Â1996. His evidence was
recorded on 04Â07Â1996. He admitted that the police had read over his statement to him and also told him to tender evidence as per his
statement. He admitted that he was giving evidence as per his police statement. In view of this, the learned counsel for the appellant submitted
that since the witness was not stating the facts from his memory, the entire evidence of this witness Prabhakar would be inadequate to provide any
corroboration to that of P.W.1 Pundlik. The learned Additional Public Prosecutor submitted that since the incident was nine years' old, there was
nothing wrong in the witness refreshing his memory by reading his statement before deposing about the incident giving minute details. There would
indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test
the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could
be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not be permissible
for such a witness to to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he
was reeling them out of his memory. Therefore, the objection to the reliability of evidence of P.W.2 Prabhakar taken by the learned counsel for the
appellant is valid.â€
The said position of law has been confirmed by a Division Bench of this Court in the case of Suresh Versus State (Supra), wherein it has been
held as follows:Â
“30. In the crossÂexamination, Sharyu (PWÂ1) has admitted as under:
“It is true that, today, I have read my statement. It is true that police had given the same to me. It is true that the said police Officer is sitting in
the Court hall.â€
In the backdrop of the aforesaid evidence, it will be useful to refer reported decision by the learned Single Judge of this Court (R.C. Chavan, J)
reported in 2006(2) Mh.L.J. (Cri) 1210 : [2007 ALL MR (Cri) 352] Sharad s/o Namdeorao Shirbhate vs. State of Maharashtra.
In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PWÂ1) has admitted that the police has read over his
statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:
“There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the
Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some
material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It
would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving
minute details as if he was reeling them out from his memory.
Therefore, the objection to the reliability of evidence of PWÂ2 Prabhakar taken by learned counsel for the appellant is valid.†(emphasis is supplied
by us).
We approve the dictum of the learned Single Judge in that behalfâ€
Applying the aforesaid position of law to the present case, it becomes clear that the evidence of panch no.2 (PW3) cannot be said to be reliable.Â
As a result, other than the evidence of only the complainant (PW1), there is no other evidence to support the case of the prosecution. It has been
already found above that the evidence of even the complainant (PW1) is not wholly reliable, particularly on the aspect of initial demands on 04.04.1996
and 12.04.1996, as also in respect of demand on 16.04.1996 when the trap was executed. It is also significant that in crossÂexamination, the
complainant (PW1) admitted that he shook hand with the appellant while leaving, at the place where bicycle was kept. Although immediately
thereafter, he retracted and stated that he had simply offered Namaskar. This assumes importance because even as per the prosecution case, the
material on record demonstrated that there were faint stains on the hand of the appellant. This, thus, lends credence to the stand of the appellant that
he had never touched the bribe amount and that the complainant (PW1) had sought to falsely implicate him as he was not offering any help for
ensuring that the children of the complainant (PW1) would pass in the final examination.
In this backdrop, the defence taken by the appellant in his statement under Section 313 of Cr.P.C. assumes significance, where he had stated his
version about the manner in which the incident occurred. If the said statement of the appellant is read in the context of the evidence of the
prosecution witnesses in the present case, the same assumes significance. It can be said that the version sought to be put forward by the appellant
in his defence is probable and that even the tenor of evidence put forth on behalf of the prosecution demonstrates that it is quite possible that the
events unfolded in the manner in which the appellant has sought to explain.
The trial Court has noted the fact that it is the solitary evidence of the complainant (PW1) which is the basis of the prosecution case and yet the
trial Court has not properly appreciated the same while convicting and sentencing the appellant. The serious infirmities in the evidence of the
complainant (PW1) and the absolute lack of any other evidence to prove the prosecution case has not been taken into consideration in the proper
perspective by the trial Court while passing the impugned judgment and order. This has rendered its findings erroneous and unsustainable. In
view of the above, it is evident that the appellant has been able to make out a case in his favour.
Accordingly, the instant appeal is allowed. The impugned judgment and order passed by the trial Court is quashed and set aside and the
appellant is acquitted of the charges levelled against him. His bailÂbond stands cancelled. The fine amount, if any, deposited by the appellant
shall be refunded to him.