Bombay High Court: K.R. Shriram, J., while explaining the concept of bribe under the Prevention of Corruption Act, 1988, upheld the decision of Sessions Court.
Present appeal was filed with respect to impugning an order and judgment passed by Special Judge under P.C. Act Pune acquitting respondent (referred as accused) of offence punishable under Section 7 (Public servant taking gratification other than legal remuneration in respect of an official act) and Sections 13(1) (d) read with Section 13(2) (Criminal misconduct by a public servant) of the Prevention of Corruption Act, 1988.
Sambhaji Namdeo Sakhare (PW 1) complainant and his family members were served with a notice from the office of Sub-Divisional Officer, Maval Sub-Division informing them about compensation to be paid to them against the acquisition of their property.
Rs 30,000 was towards compensation of the building in the acquired. When PW-1 went to the office of the Sub-Divisional Officer to collect the compensation amount, the accused demanded Rs 1,000 for preparing and giving the cheque of Rs 30,000 out of the total amount of compensation.
As PW-1 was not having Rs 1,000 at the said time, hence it was alleged that the accused asked him to bring the said amount on the next date and collect the said cheque of Rs 30,000.
PW-1 approached A.C.B and lodged a complaint. After formalities for pre trap panchanama were completed, the raiding party went to the office of accused.
Later, PW-1 and PW-2 went and met accused who told them to come again on a date informed to them. On 12-08-2003, the accused took the signature of the complainant on receipt of which revenue stamp was affixed and accused informed PW 1 that officer concerned was not available and therefore he should come back again on 14-08-2003.
On 14th August, 2003 raiding party went to the office of the accused, then again the complainant was told to come again at 4.00 P.M. At, 4.00 P.M. complainant and panch entered the office of the accused, cheque was given by accused to complainant and when complainant and panch started going out, accused went towards water cooler which was kept in the office. While drinking water, accused gestured by his hand to the complainant demanding money and then complainant handed over marked currency to accused who accepted those notes by his left hand and kept it in the left side pocket of his pant. Then complainant went out and gave the agreed signal to the raiding party.
Accused was immediately caught and the marked currency along with certain other amounts were found. The said currency was checked under an ultraviolet lamp. Thereafter, post trap panchanama was prepared, investigation commenced, and investigation papers were prepared.
Trial Court had concluded that accused required to be acquitted.
Bench noted a lot of inconsistencies in the evidence of the complainant.
High Court expressed that the law on the issue is well settled that demand of illegal gratification is sine quo non for constituting an offence under the Prevention of Corruption Act, 1988.
Bench elaborated on the concept of bribe and expressed that,
Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.
Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
Therefore, the burden lies upon the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of 1988 Act.
It is further stated that, while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
In Court’s opinion, recovery of tainted currency is not sufficient to hold a person guilty. Demand has to be unequivocally proved.
Bench found that the evidence of complainant was fraught with a lot of inconsistencies and contradictions with the evidence of the prosecution witness.
Single Judge of this Court in Khushalchand Yashwant Gaikwad v. State of Maharashtra, 2018 SCC Online Bom 1073, held that it is well-settled law that mere possession and recovery of currency notes without proof of demand will not bring home the offence under Section 7 since the demand of illegal gratification is sine qua non to constitute the offence.
In view of the above discussion, High Court stated that there is an acquittal and therefore, there is double presumption in favour of the accused.
Adding to the above, Court held that firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law.
Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
Therefore, Sessions Court rightly observed that the prosecution failed to prove its case.
Appeal was dismissed in the above view.[State of Maharashtra v. Srirang Dagaduji Bale, 2021 SCC OnLine Bom 1123, decided on 30-06-2021]
Advocates before the Court:
Ms. M.M. Deshmukh, Addl. P.P. for State.
Mr. Satyavrat Joshi for Respondent.