Bombay High Court
Baban S/O Kisan Ingle (Dead) Thr. Smt. … vs State Of Mah. Thr. P.S.O. Buldhana on 9 October, 2024
2024:BHC-NAG:11274
Judgment
299 apeal419.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.419 OF 2009
Baban s/o Kisan Ingle (Dead),
aged about : 49 years,
r/o Lonar, taluka Lonar,
district : Buldhana.
Through LR:
Smt.Laxmi wd/o Baban Ingle,
aged about 42 years,
occupation : household,
r/o room No.120, Police Head
Karanja square, Buldhana,
district Buldhana. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Police Station Officer,
Buldhana,
district : Buldhana. ..... Respondent.
===============================
Shri Atharva Manohar, Counsel for the Appellant.
Mrs.Sneha Dhote, Additional Public Prosecutor for
the Respondent/State.
===============================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 25/09/2024
PRONOUNCED ON : 09/10/2024
JUDGMENT
1. By this appeal, the appellant (the accused) has
challenged judgment and order dated 10.8.2009 passed
…..2/-
Judgment
299 apeal419.09
2
by learned Additional Sessions Judge, Special Judge,
Buldana (learned Judge of the special court ), in Special
Anti Corruption Case No.1/2001.
2. By the said judgment impugned, the accused is
convicted for offences punishable under Sections 7 and
13(1)(d) read with 13(2) of the Prevention of Corruption
Act, 1988 and sentenced to undergo simple
imprisonment for two years and to pay fine Rs.1000/-, in
default, to undergo simple imprisonment for six months.
3. Brief facts of the prosecution case are as under:
4. Keshav Namdeo Sangale, a resident of Sangale,
taluka Lonar, district Buldana, lodged a written report
with the Lonar Police Station on 25.8.2000 alleging that
Sakharam Kedar had committed theft of axle of his
bullock cart worth of Rs.700/-. The investigation of the
said written report was handed over to the accused. It
is alleged that the accused called Ashok Sakharam and
Sakharam Kedar in the police station through Police Patil.
Accordingly Ashok Sakharam, Sakharam, Ramesh, and
…..3/-
Judgment
299 apeal419.09
3
Bajirao Jaybhaye and others visited the Lonar Police
Station. The accused took them in back side of room of
the police station and by giving threats of taking Ashok
Kedar and Sakharam Kedar in police custody, demanded
Rs.200/- for Keshav and Rs.2000/- for himself for not
obtaining police custody remand and not arresting them.
Ashok Kedar gave Rs.200/- for paying it to Keshav and
assured the accused to pay Rs.2000/- within two three
days and, thereafter, Ashok approached his maternal
uncle Shripatrao Jaybhaye and disclosed facts to him and
requested to pay him Rs.2000/- for giving it to the
accused. Ashok along with his maternal uncle Shripatrao
came at the Lonar Police Station and met the accused.
The accused demanded amount Rs.2000/- from them
and, therefore, maternal uncle Shripatrao gave Rs.1000/-
to Sakharam for giving it to the accused. As Ashok was
not inclined to pay the amount to the accused, he
approached the office of the Anti Corruption Bureau at
Buldhana and lodged a complaint.
…..4/-
Judgment
299 apeal419.09
4
5. After receipt of the complaint, officials of the
bureau called two panchas. The complaint was read over
to panchas and they verified contents of the complaint.
The complainant produced ten currencies of Rs.100/-
before officers of the bureau. The demonstration as to
phenolphthalein powder and sodium carbonate was
shown to the complainant and panchas. After applying
the said solution, the amount was kept in right side of
shirt pocket of the complainant. The complainant was
instructed not to hand over the amount unless there is a
demand and also asked to give a signal on acceptance of
the amount. Pancha No.1 was also instructed to remain
with the complainant and observe events. Pancha No.2
was instructed to remain with raiding party members.
Accordingly, pre-trap panchanama was drawn.
6. The complainant and pancha No.1 Anantrao
Dhoran went to the police station to see the accused.
After some time, the complainant and pancha No.1 came
and informed raiding party that the accused is coming
within a short time in hotel and they were asked to go to
…..5/-
Judgment
299 apeal419.09
5
hotel. The accused came out of the police station and
went in the hotel and enquired about the amount. The
complainant handed over the same. Accordingly, the
complainant had given a signal and the accused was
caught. The amount was recovered from the accused.
The hand wash of the accused as well as the
complainant was collected. The pant of the accused was
also verified by sprinkling the solution. After completing
procedure of post-trap panchanama, the complaint was
lodged by the trap officer on the basis of which, the
crime was registered. During investigation, the
investigating officer sent investigation papers to the
sanctioning authority for according a sanction. Seized
muddemal was sent for chemical analysis. After
completion of the investigation, a chargesheet was
submitted against the accused.
7. To substantiate allegations, the prosecution
examined as many as six witnesses namely Anantrao
Dhoran vide Exhibit-32 (PW1), the Shadow Pancha;
Ashok Kedar vide Exhibit-37 (PW2), the complainant;
…..6/-
Judgment
299 apeal419.09
6
Sakharam Kedar vide Exhibit-49 (PW3), the father of the
complainant; Shripat Jaybhaye vide Exhibit-51 (PW4),
maternal uncle of the complainant; Ranjit Sahay vide
Exhibit-59 (PW5), the Sanctioning Authority; and Devidas
Mahale vide Exhibit-70 (PW6), the Trap Officer.
8. Besides the oral evidence, the prosecution relied
upon complaint Exhibit-33, pre-trap panchanama Exhibit-
34, seizure memos Exhibits-43 to 45, post-trap
panchanama Exhibit-47, sanction order Exhibit-60, map
Exhibit-46, house search panchanama of the accused
Exhibit-48, and Chemical Analyzer’s Report Exhibit-76.
9. After considering the evidence adduced during the
trial, learned Judge of the Special Court held the accused
guilty as the aforesaid.
10. Heard learned counsel Shri Atharva Manohar for
the accused and learned Additional Public Prosecutor
Mrs.Sneha Dhote for the State. I have been taken
through the entire evidence so also the judgment
impugned in the appeal.
…..7/-
Judgment
299 apeal419.09
7
11. Learned counsel for the accused submitted that
learned Judge of the Special Court erroneously convicted
the accused in absence of any corroborative evidence as
to the demand and acceptance of the alleged
gratification as it is not proved. The demand and
acceptance of illegal gratification is sine qua non for
attracting provisions of the said Act. He submitted that
recital of the complaint shows that villagers namely
Ramesh Bajirao were present when the demand was
made. None of them is examined by the prosecution.
There are material contradictions which affect the
prosecution case. The tainted notes are not forwarded to
the Chemical Analyzer. Though the investigating officer
and pancha witness stated that solution was sprinkled on
notes, no stains are found on the said notes. The aspect
of the demand and acceptance is not proved. Mere
recovery of the amount from the accused that by itself is
not sufficient to hold him guilty. A draft sanction order
was sent to Sanctioning Authority PW5 Ranjit Sahay and
on the basis of the draft sanction order, the sanction was
…..8/-
Judgment
299 apeal419.09
8
accorded. Thus, the entire prosecution case fails as the
sanction was accorded without application of mind.
12. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. Shrikant Tukaram Borade vs. State of
Maharashtra1;
2. Khilli Ram vs. State of Rajasthan2;
3. Manohar Ravan Kamble vs. State of
Maharashtra3;
4. Kuldeep s/o Thauraji Kale and anr vs. The
State of Maharashtra4;
5. Mohan Bhaiyyalal Shrivastava vs. The
State of Maharashtra5, and
6. Ramesh Tukaram Waghmare vs. State of
Maharashtra6.
13. Per contra, learned Additional Public Prosecutor for
the State submitted that not only the evidence of
complainant PW2 Ashok Kedar is corroborated by
1 2010 SCC OnLine Bom 2355
2 (1985)1 SCC 28
3 2011 Scc OnLine Bom 2108
4 Criminal Appeal No.99/2010 decided by this court on 8.3.2024
5 Criminal Appeal No.265/2005 decided decided by this court on 4.9.2023, and
6 Criminal Appeal No.148/2006 decided by this court on 22.1.2024
…..9/-
Judgment
299 apeal419.09
9
Shadow Pancha PW1 Anantrao Dhoran but also it is
corroborated by father of the complainant PW3
Sakharam Kedar and maternal uncle of the complainant
PW4 Shripat Jaybhaye. The amount was recovered from
the accused. The solution collected after the acceptance
was sent to the Chemical Analyzer and the Chemical
Analyzer’s Report shows that the solution has contents
of phenolphthalein powder and sodium carbonate. As far
as the sanction is concerned, the evidence of Sanctioning
Authority PW5 Ranjit Sahay shows that it is after
application of mind. Thus, the prosecution has proved
the demand as well as acceptance and, therefore, no
interference is called for in the judgment impugned in
the appeal.
14. Since question of validity of the sanction has
been raised as a primary point, an aspect of sanction
requires to be discussed. The sanction order was
challenged on ground that it was not accorded after
application of mind.
…..10/-
Judgment
299 apeal419.09
10
15. In order to prove the sanction order, the
prosecution placed reliance on the evidence of
Sanctioning Authority PW5 Ranjit Sahay, who testified
that at the relevant time, he was working as
Superintendent of Police at Buldana from 11.4.2001 to
2.6.2023. The Superintendent of Police is competent
authority to dismiss or remove persons from services
who are police officers upto cadre of Assistant Sub
Inspector. Police Head Constables come within that
category. His evidence further shows that he received
investigation papers in respect of Crime No.3049/2000.
The accused was serving at the Lonar Police Station. He
studied papers received by him carefully and cautiously
and came to a conclusion that sanction is to be
accorded. He referred the prosecution case and deposed
that the accused gave assurance to complainant PW2
Ashok Kedar to settle the matter and demanded the
amount. The enquiry regarding the theft of axle was
with the accused. The accused has to submit his report
regarding the enquiry of the complaint, but he has not
…..11/-
Judgment
299 apeal419.09
11
submitted the report and demanded gratification
amount. On his satisfaction, he accorded the sanction.
During his cross examination, it brought on record that
contents of the sanction order and the draft sanction
order are the same. In further cross examination, it
revealed that the accused demanded the amount and
accepted the same and, therefore, he accorded the
sanction.
16. Undisputedly, the accused was serving as the
Police Head Constable. The enquiry of the theft case was
allotted to the accused.
17. Recital of the sanction order further shows that
the entire prosecution case was introduced and it was
specifically mentioned in the sanction order that after
application of mind, Sanctioning Authority PW5 Ranjit
Sahay satisfied himself and accorded the sanction.
18. Thus, the evidence on record and the sanction
order show that after evaluating the material,
…..12/-
Judgment
299 apeal419.09
12
Sanctioning Authority PW5 Ranjit Sahay accorded the
sanction.
19. Whether sanction is valid or not and when
sanction can be called as valid, the same is settled by
various decisions of the Hon’ble Apex Court as well as
this court.
20. The Hon’ble Apex in the case of Mohd.Iqbal
Ahmad vs. State of Andhra Pradesh7 held that what
the court has to see is whether or not the Sanctioning
Authority at the time of giving the sanction was aware
of the facts constituting the offence and applied its
mind for the same and any subsequent fact coming into
existence after the resolution had been passed is wholly
irrelevant. The grant of sanction is not an idle formality
or an acrimonious exercise but a solemn and sacrosanct
act which affords protection to government servants
against frivolous prosecutions and must therefore be
strictly complied with before any prosecution can be
launched against the public servant concerned.
7 1979 AIR 677
…..13/-
Judgment
299 apeal419.09
13
21. In view of the settled principles of law, it is crystal
clear that the Sanctioning Authority has to apply his/her
own independent mind for generation of his/her
satisfaction for sanction. The sanction order should
speak for itself. It is well settled that sanction order
should not be so elaborate like an order of court
containing detailed reasons, but it should be after
application of mind. Ultimately, an object of grant of
sanction should be able to consider evidence and
material before it and the Sanctioning Authority shall
come to a conclusion that whether the prosecution in
the circumstances be permitted or forbidden. It is
further well settled that sanction is solemn and
sacrosanct act. The law does not require sanction to be
in a particular form. The sanction should be given in
respect of facts constituting offence charged equally
which applies to the sanction under Section 19 of the
said Act.
22. As observed earlier, sanction order is not required
to be passed as of a court order.
…..14/-
Judgment
299 apeal419.09
14
23. In the light of the above well settled legal position,
if the sanction order is perused, Sanctioning Authority
PW5 Ranjit Sahay, after perusal of the record and
application of mind, accorded the sanction.
24. Thus, the issue of sanction cannot be put at such
pedestal as it would make impossible for the
prosecution to prove the same. The object and purpose
of grant of sanction and protection contemplated
thereby does not mean that technical and trivial
objections to legality and validity of sanction to be
entertained. When all relevant materials placed before
the Sanctioning Authority are found to be taken into
consideration in correct perspective, the sanction
accorded is by application of mind.
25. The sanction accorded in the present case is after
application of mind and, therefore, the submission of
learned counsel for the accused, that the sanction is not
according to law, is not sustainable and liable to be
discarded.
…..15/-
Judgment
299 apeal419.09
15
26. Besides the issue of the sanction, the prosecution
claimed that the accused demanded the gratification
amount and accepted the same. In order to prove the
demand and acceptance, the prosecution placed reliance
on the evidence of Shadow Pancha PW1 Anantrao
Dhoran and complainant PW2 Ashok Kedar. As to the
previous demand, the prosecution placed reliance on the
evidence of father of the complainant PW3 Sakharam
Kedar and maternal uncle of the complainant PW4
Shripat Jaybhaye.
27. On the question of the demand and acceptance, if
the evidence of complainant PW2 Ashok Kedar is
perused, it would show that he testified that he had
purchased an axle of bullock cart from Lonar for Rs.150/-.
However, Keshav and his brother Madhukar informed him
that axle attached to his bullock cart is owned by them
and they lodged a theft case against him. On 11.9.2000,
Police Patil Ganesh Sangle informed him that he is called
by the accused at the Police Station. On the next day, he
along his father Sakharam, one Ramesh and Bajirao went
…..16/-
Judgment
299 apeal419.09
16
to the police station. In their presence, the accused, by
taking him and his father at back side of the police
station, threatened them and demanded Rs.2000/- for
settlement. The accused demanded Rs.200/- for giving it
to Keshav. Amount Rs.200/- was immediately given by
complainant PW2 Ashok Kedar, which was given to
Keshav by the accused. He assured the accused to pay
Rs.2000/- within 2-3 days. On 13.9.2000, he obtained
amount from his maternal uncle and visited the police
station along with the maternal uncle. In presence of his
maternal uncle also, the demand was made. As he was
not willing to pay the amount, he approached the office
of the bureau and lodged the report. He also narrated
about various events took place during the pre-trap
panchanama. As to the demand on the day of the trap,
he testified that he along with Shadow Pancha PW1
Anantrao Dhoran visited the police station,
communicated with the accused, the accused asked him
to wait in the hotel, and he along with the said pancha
went in the hotel. After some time, the accused came
…..17/-
Judgment
299 apeal419.09
17
there and demanded the amount. As the accused
agreed to take the amount in two installments, he
handed over amount of Rs.1000/- by his right hand and
the accused kept it in his pant pocket. Thereafter, he
gave a signal and the accused was caught. The amount
was recovered from the accused. The hand wash of the
accused so also the complainant was obtained.
28. To corroborate the aspect of the demand and
acceptance on the day of the trap, the prosecution
examined Shadow Pancha PW1 Anantrao Dhoran and
pancha No.2, who also testified that as per directions of
their superior, they attended the office of the bureau
whereat they were introduced with complainant PW2
Ashok Kedar. The complainant narrated the incident,
which they verified from the complaint. They also
narrated about various events including the
demonstration as to phenolphthalein powder and sodium
carbonate and accordingly, pre-trap panchanama was
drawn.
…..18/-
Judgment
299 apeal419.09
18
As to the demand and acceptance, the evidence of
the Shadow Pancha is that he along with the complainant
went to the police station. During communication, the
accused asked them for ten minutes and they went at a
tea stall whereat the accused demanded the amount and
accepted same. The accused was caught by officers of
the bureau. He was enquired by officers of the bureau as
to communication between the complainant and the
accused. He narrated as to the demand and acceptance.
The amount was recovered from the accused. The hand
wash of the accused was also obtained.
29. Shadow Pancha PW1 Anantrao Dhoran and
complainant PW2 Ashok Kedar were cross examined.
Insofar as the cross examination of complainant
PW2 Ashok Kedar is concerned, it revealed that
previously he was knowing the accused. He admitted
that an offence was registered against his father at Lonar
Police Station for outraging modesty of a woman. As far
as presence of other witnesses is concerned, he stated
…..19/-
Judgment
299 apeal419.09
19
that Ramesh Sangle is his maternal uncle and Kisan
Kedar, Maruti Sangle, Vijay Sangle, and Nimbaji Sangle
are from his village. He denied that Ramesh met him
and his father when they went at Lonar. One omission is
brought on record that he has not stated before the trap
officer that Ramesh and Bajirao were with him when they
went to the Lonar Police Station. It came in the cross
examination that in first room, where they met the
accused, there was no talk about the money. The
evidence further shows that Ramesh and Bajirao came at
back side room after the talk regarding demand of
money was over.
Thus, his cross examination shows that money
was demanded when these two persons Ramesh and
Bajirao were not present.
He further admitted that he has not stated before
the trap officer while making statement that the accused
had told that he would require to take PCR in presence of
his maternal uncle. He has also not stated that his
…..20/-
Judgment
299 apeal419.09
20
maternal uncle had given him Rs.1000/- for giving it to
the accused.
These omissions are proved by the accused
through the cross examination of the trap officer.
The cross examination further shows that on the
day of the trap, when the demand was made, except the
Shadow Pancha, none was present in the room. The
cross examination further shows that the accused asked
him whether the amount is brought.
Thus, the cross examination also shows that when
initial demand was made, Ramesh and Bajirao were not
along with the complainant. At the time of the demand
on the day of the trap, only the shadow pancha was
present. It is specifically brought during the cross
examination that the accused asked him whether the
amount is brought.
…..21/-
Judgment
299 apeal419.09
21
30. Whether there is corroboration or not to the
evidence of complainant PW2 Ashok Kedar, the same is
to be seen.
31. As to the demand and acceptance, the evidence of
Shadow Pancha PW1 Anantrao Dhoran is consistent with
the evidence of complainant PW2 Ashok Kedar, who
testified that in his presence, the accused has asked
whether the money is brought and the complainant
handed over amount Rs.1000/- and informed that
remaining amount Rs.1000/- he would pay within 2-3
days. Insofar as the cross examination of the Shadow
Pancha is concerned, it reveals that nothing incriminating
is brought on record to shatter his evidence.
32. Father of the complainant PW3 Sakharam Kedar
and maternal uncle of the complainant PW4 Shripat
Jaybhaye, are witnesses on the previous demand.
It is categorically stated in the evidence of
complainant PW2 Ashok Kedar that after receipt of the
information that he is called by the accused, he along
…..22/-
Judgment
299 apeal419.09
22
with his father went at the police station. He specifically
stated that the accused had taken him and his father at
back side of room and demanded the amount. The cross
examination of the complainant also shows that Ramesh
and Bajirao, who were present in the police station, came
at the back side of room when the talk, regarding
payment of money, was over.
Thus, not only the chief examination but also the
cross examination shows that at the relevant time, when
the demand was made on 12.9.2000, only the father of
the complainant was present along with him.
The father of the complainant also deposed that
when he visited along with his son at the police station,
the accused demanded Rs.2000/-. His cross examination
shows he has no occasion to tell the police that the
accused has taken him and his son in another room. One
portion mark “A” is brought on record.
The maternal uncle of the complainant, was
present with the complainant when the complainant
…..23/-
Judgment
299 apeal419.09
23
visited the police station on the next day. His evidence
also shows that in his presence, the accused made a
demand from the complainant and the complainant
obtained Rs.1000/- from him.
33. Trap Officer PW6 Devidas Mahale, has narrated
about procedure carried out by him during pre-trap and
post-trap panchanamas. Admittedly, he is not
eyewitness as to the demand and acceptance, but he is
the witness to show that the amount was recovered from
the accused.
The cross examination of the trap officer also
shows that complainant PW2 Ashok Kedar and his father
PW3 Sakharam Kedar had gone to the police on
12.9.2000 after receiving message on 10.9.2000. The
cross examination further shows that talks of demand
took place in presence of Sakharam.
Thus, the cross examination of the Trap Officer
also shows that Sakharam was present when the earlier
demand was made. As far as contradiction, brought on
…..24/-
Judgment
299 apeal419.09
24
record during the cross examination of Sakharam, is
concerned, the same was put and proved through the
investigating officer.
34. It is vehemently submitted by learned counsel for
the accused that though independent witnesses were
present, they are not examined in whose presence the
demand was made.
If the said submission is appreciated, in the light of
the evidence, not only the chief examination but also the
cross examination of complainant PW2 Ashok Kedar and
the evidence of father of the complainant PW3 Sakharam
Kedar shows that except the complainant and Sakharam,
no other person was present when the demand was
made.
Thus, the demand was made in the presence of
father of the complainant PW3 Sakharam Kedar on
12.9.2000 and maternal uncle of the complainant PW4
Shripat Jaybhaye on 14.9.2000 and, therefore, the
contention of learned counsel for the accused that there
…..25/-
Judgment
299 apeal419.09
25
is no corroboration to the aspect of the demand is not
sustainable for the reason that the demand was made in
presence of Sakharam and Shripat, who were examined
and they corroborated version of the complainant.
35. It is well settled that besides the direct evidence,
demand and acceptance can be proved on the basis of
circumstantial evidence.
36. The Constitution Bench of the Hon’ble Apex Court
in the case of Neeraj Dutta vs. State (Govt.of NCT
of Delhi)8 held that for recording conviction under
Sections 7 and 13 (1)(d)(i) (ii) of the said Act, the
prosecution has to prove the demand and acceptance of
illegal gratification either by direct evidence which can
be in the nature of oral or documentary evidence or by
circumstantial evidence in the absence of direct or oral
evidence. It further held that under Section 7 of the said
Act in order to bring home the offence, there must be an
offer which emanates from the bribe giver which is
accepted by the public servant which would make it an
8 2023 4 SCC 731
…..26/-
Judgment
299 apeal419.09
26
offence. Similarly, a prior demand by the public servant
when accepted by the bribe giver and in turn there is a
payment made which is received by the public servant,
would be an offence of obtainment under Section 13(1)
(d) and (i) and (ii) of the said Act.
37. It is well settled that offences under the said Act
relating to public servants taking bribe require demand
of illegal gratification and acceptance thereof. The
proof of demand of bribe by public servants and its
acceptance by him is sine qua non for establishing
offences under the said Act.
38. The Hon’ble Apex Court in the case of
K.Shanthamma vs. The State of Telangana 9
referring the judgment in the case of P.Satyanarayana
Murthy vs. District Inspector of Police, State of
Andhra Pradesh and anr 10 held that the proof of
demand of bribe by a public servant and its acceptance
by him is sine quo non for establishing the offence
9 2022 LiveLaw (SC) 192
10 (2015)10 SCC 152
…..27/-
Judgment
299 apeal419.09
27
under Section 7 of the said Act. The 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 offences under Sections 7
and 13 of the said Act would not entail his conviction
thereunder. The Hon’ble Apex Court has reproduced
paragraph No.23 of its decision in the case of
P.Satyanarayana Murthy supra, which reads thus:
“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 Section
7 or 13 of the Act would not entail his
conviction”.
39. To prove the offence under Sections 7 and 13(1)
(d) of the said Act, following are ingredients of the said
Sections, which require to be prove:
…..28/-
Judgment
299 apeal419.09
28
under Section 7: (1) the accused must be a
public servant or expecting to be a public
servant; (2) he should accept or obtain or agrees
to accept or attempts to obtain from any person;
(3) for himself or for any other person; (4) any
gratification other than legal remuneration, and
(5) as a motive or reward for doing or forbearing
to do any official act or to show any favour or
disfavour.
under Section 13(1)(d): (1) the accused must
be a public servant; (2) by corrupt or illegal
means, obtains for himself or any other person
any valuable thing or pecuniary advantage; or or
by abusing his position as public servant, obtains
for himself or for any other person any valuable
thing or pecuniary advantage; or while holding
office as public servant, obtains for any person
any valuable thing or pecuniary advantage
without any public interest; (3) to make out an
offence under Section 13(1)(d), there is no
…..29/-
Judgment
299 apeal419.09
29
requirement that the valuable thing or pecuniary
advantage should have been received as a
motive or reward; (4) an agreement to accept or
an attempt to obtain does not fall within Section
13(1)(d); (5) mere acceptable of any valuable
thing or pecuniary advantage is not an offence
under this provision; (6) to make out an offence
under this provision, there has to be actual
obtainment, and (7) since the legislature has
used two different expressions namely “obtains”
or “accepts”, the difference between these two
have to be taken into consideration.
40. The Constitution Bench of the Hon’ble Apex Court
in the case of Neeraj Dutta vs. State (Govt.of NCT
of Delhi) supra held that in order to bring home the
guilt of the accused, the prosecution has to first prove
the demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue can be
proved either by direct evidence which can be in the
nature of oral evidence or documentary evidence. The
…..30/-
Judgment
299 apeal419.09
30
Hon’ble Apex Court, while discussing expression
“accept”, referred the judgment in the case of Subhash
Parbat Sonvane vs. State of Gujarat 11 observed that
mere acceptance of money without there being any
other evidence would not be sufficient for convicting the
accused under Section 13(1)(d)(i). In Section and 13(1)
and (b) of the said Act, the Legislature has specifically
used the words ‘accepts’ or ‘obtains’. As against this,
there is departure in the language used in clause (1)(d)
of Section 13 and it has omitted the word ‘accepts’ and
has emphasized the word ‘obtains’. In sub clauses (i)
and (ii) (iii) of Section 13(1)(d), the emphasize is on the
word “obtains”. Therefore, there must be evidence on
record that accused ‘obtained’ for himself or for any
other person any valuable thing or pecuniary advantage
by either corrupt or illegal means or by abusing his
position as a public servant or he obtained for any
person any valuable thing or pecuniary advantage
without any public interest.
11 (2002)5 SCC 86
…..31/-
Judgment
299 apeal419.09
31
41. While discussing the expression “accept”, the
Hon’ble Apex Court observed that “accepts” means to
take or receive with “consenting mind”. The ‘consent’
can be established not only by leading evidence of prior
agreement but also from the circumstances surrounding
the transaction itself without proof of such prior
agreement. If an acquaintance of a public servant in
expectation and with the hope that in future, if need be,
he would be able to get some official favour from him,
voluntarily offers any gratification and if the public
servant willingly takes or receives such gratification it
would certainly amount to `acceptance’ and, therefore,
it cannot be said that as an abstract proposition of law,
that without a prior demand there cannot be
`acceptance’. The position will however, be different so
far as an offence under Section 5(1)(d) read with
Section 5(2) of the 1947 Act is concerned. Under the
said Sections, the prosecution has to prove that the
accused `obtained’ the valuable thing or pecuniary
advantage by corrupt or illegal means or by otherwise
…..32/-
Judgment
299 apeal419.09
32
abusing his position as a public servant and that too
without the aid of the statutory presumption under
Section 4(1) of the 1947 Act as it is available only in
respect of offences under Section 5(1)(a) and (b) and
not under Section 5(1)(c), (d) or (e) of the 1947 Act.
According to this court, ‘obtain’ means to secure or gain
(something) as the result of request or effort. In case of
obtainment the initiative vests in the person who
receives and in that context a demand or request from
him will be a primary requisite for an offence under
Section 5(1)(d) of the 1947 Act unlike an offence under
Section 161 of the Indian Penal Code, which can be
established by proof of either `acceptance’ or
‘obtainment’.
42. Learned counsel for the accused placed reliance
on the decision of Shrikant Tukaram Borade supra
wherein it is held by this court that the complainant in
his evidence has stated that he invited the accused to
take tea at a public place and ordered three cups of tea,
when it was decided that he would offer bribe to the
…..33/-
Judgment
299 apeal419.09
33
accused in his office. There was thus no reason for the
complainant to change the place of making payment and
it was not his case that the accused had chosen to
accept the bribe in public place.
43. Facts in the present case are quite different as the
accused asked Shadow Pancha PW1 Anantrao Dhoran
and complainant PW2 Ashok Kedar and offered have a
tea in the hotel and asked them to go outside and,
thereafter, took them in a hotel. Thus, it was the
accused who had chosen the place to accept the amount
and, therefore, observations in Shrikant Tukaram
Borade supra are not helpful to the present case.
44. Learned counsel for the accused also placed
reliance on the decision of the Hon’ble Apex Court in the
case of Khilli Ram supra wherein it has been observed
that the police station was not far away and if the
accused wanted actually to receive the bribe, he would
try to chose a better environment for it than the one
where the bribe is said to have been given.
…..34/-
Judgment
299 apeal419.09
34
In the present case also, facts are not identical as
the accused himself has chosen the place and, therefore,
observations are not helpful to the accused.
45. Learned counsel for the accused placed reliance
on decisions of this court in cases of Kuldeep s/o
Thauraji Kale and anr supra and Mohan Bhaiyyalal
Shrivastava supra wherein aspect of corroboration was
considered by referring the decision in the case of
Panalal Damodar Rathi vs. State of Maharashtra12
wherein it is held that there could be no doubt that the
evidence of the complainant should be corroborated in
material particulars. After introduction of Section 165-A
of the Indian Penal Code making the person who offers
bribe guilty of abetment of bribery, the complainant
cannot be placed on any better footing than that of an
accomplice and corroboration in material particulars
connecting the accused with the crime has to be insisted
upon.
12 (1979) 4 SCC 526
…..35/-
Judgment
299 apeal419.09
35
46. Here, in the present case, the prosecution
examined father of the complainant PW3 Sakharam
Kedar and maternal uncle of the complainant PW4
Shripat Jaybhaye. Not only the evidence of complainant
PW2 Ashok Kedar but also the evidence of Trap Officer
PW6 Devidas Mahale states about the presence of
Sakharam along with the complainant. Thus, the
corroboration by Sakharam as to the demand is present
in the present case. The consistent evidence of the
complainant as to the demand is corroborated by
Sakharam as well as Shripat.
47. It is submitted by learned counsel for the accused
that though the evidence shows that Ramesh and one
Bajirao were present in the police station, the cross
examination of complainant PW2 Ashok Kedar
specifically states that they came at back side of room
when talk regarding the demand of money was over.
Thus, they were not witnesses on the previous demand
and, therefore, their non examination is not fatal to the
prosecution.
…..36/-
Judgment
299 apeal419.09
36
48. The evidence of complainant PW2 Ashok Kedar
and Shadow Pancha PW1 Anantrao Dhoran sufficiently
shows that there was a demand and in pursuance of the
said demand, the amount was accepted. The aspect of
previous demand was also corroborated by the oral
evidence of father of the complainant PW3 Sakharam
Kedar and maternal uncle of the complainant PW4
Shripat Jaybhaye.
49. The evidence of Sanctioning Authority PW5 Ranjit
Sahay shows that complaint filed by one Keshav alleging
theft of bullock cart axle was handed over to the accused
for interrogation. Thus, the work as to the enquiry
regarding the theft by the complainant was pending with
the accused and, therefore, there was reason for the
accused to demand the amount and accept the same.
50. The evidence of Shadow Pancha PW1 Anantrao
Dhoran and Trap Officer PW6 Devidas Mahale shows that
the demand was made and the amount was recovered
from the accused. The Chemical Analyzer’s Reports
…..37/-
Judgment
299 apeal419.09
37
show that hand wash of the accused and hand wash of
complainant PW2 Ashok Kedar and full pant of the
accused were referred for chemical analysis and
phenolphthalein powder and sodium carbonate were
detected on the same articles. Though learned counsel
for the accused submitted that tainted notes were not
sent for Chemical Analysis and, therefore, the
prosecution case affects, the Chemical Analyzer’s
Reports show contents of phenolphthalein powder and
sodium carbonate on the pant pocket of the accused
wherein he has kept the amount, which is sufficient to
show involvement of the accused in the alleged office.
51. Thus, the evidence as to the demand and
acceptance is consistent and corroborative and,
therefore, there is no hesitation to hold that the demand
and acceptance is proved.
52. Insofar as the defence of the accused of total
denial is concerned and cross examination which fails to
rebut the presumption, the Hon’ble Apex Court, in the
…..38/-
Judgment
299 apeal419.09
38
case of C.M.Girish Babu vs. CBI Cochi, High of
Kerala13, held that it is well settled that the
presumption to be drawn under Section 20 is not an
inviolable one. The accused charged with the offence
could rebut it either through the cross-examination of
the witnesses cited against him or by adducing reliable
evidence. It is further held that it is equally well settled
that the burden of proof placed upon the accused
person against whom the presumption is made under
Section 20 of the Act is not akin to that of burden placed
on the prosecution to prove the case beyond a
reasonable doubt. It is well settled that the presumption
to be drawn under Section 20 is not an inviolable one.
The accused charged with the offence could rebut it
either through the cross-examination of the witnesses
cited against him or by adducing reliable evidence. It is
further held that it is equally well settled that the
burden of proof placed upon the accused person against
whom the presumption is made under Section 20 of the
Act is not akin to that of burden placed on the
13 (2009)3 SCC 779
…..39/-
Judgment
299 apeal419.09
39
prosecution to prove the case beyond a reasonable
doubt.
53. In the case in hand, a condition precedent to
draw such legal presumption, that the accused has
demanded the amount and accepted the same, has
been proved and established. The evidence of Trap
Officer PW6 Devidas Mahale shows that after
acceptance of the amount, the hand wash of the
accused was collected and sent for chemical analysis
and the Chemical Analyzer’s Report shows contents of
the phenolphthalein powder and sodium carbonate,
which sufficiently show involvement of the accused.
54. Thus, in the present case, a primary condition for
acting on the legal presumption, that the prosecution
should have proved that whatever received by accused
was gratification, is proved by the prosecution. A fact is
said to be proved when its existence is directly
established or when upon the material before it the
Court finds its existence to be so probable that a
…..40/-
Judgment
299 apeal419.09
40
reasonable man would act on the supposition that it
exists. Unless, therefore, the explanation is supported
by proof, the presumption created by the provision
cannot be said to be rebutted. Learned Judge of the
Special Court has rightly considered the same and
convicted and sentenced the accused. The sanction
accorded is also after application of mind and,
therefore, no interference is called for.
55. In the light of the above, the appeal is devoid of
merits and liable to be dismissed and the same is
dismissed.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 09/10/2024 18:34:32