09 Jun 2121

The requirement of ‘demand of money by the accused’, should be proved by the prosecution beyond all reasonable doubt, is necessary, to attract the offences punishable under the Prevention of Corruption Act, 1988 - Bombay High Court

Case : Anil Krishnarao Apashingkar v. State of Maharashtra Criminal Appeal No. 793 of 2013

Court : Bombay High Court

Bench : Justice Prakash D. Naik

Decided on : 09 Jun 2121

Relevant Statutes

Section 374 & 313 of Criminal Procedure Code,1973.

Section 7 and Section 13(1)(d) read with Section 13(2) & Section 20 of Prevention of Corruption Act, 1988

Brief Facts and Procedural History

1. Prosecution Case: - Complainant was working in the Police department. He owns the property and had applied for an electrical connection. On his retirement, he inquired about his application for electricity connection in the office of the electricity department. Where he met the accused. As per the say of accused complainant deposited the amount towards electricity connection in the concerned department at Aundh. The complainant requested the accused of granting an electric connection immediately. The accused demanded Rs. 15,000/- as a bribe.

2. The complainant lodged the complaint on 20th May 2010. A trap was arranged. On instructions of the Anti-Corruption Bureau (ACB), demand was verified. The conversation was tape-recorded. Anthracene powder was applied to the currency notes. In the presence of two to three other persons in the office, the complainant handed over the amount which was accepted by the accused. The raiding party rushed to the office. The accused was apprehended. Accused took out the currency notes from his pocket and placed them on the table. The amount was seized. All the required procedure was completed. On completing the investigation, Charge was framed against the appellant for offences punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988.

3. The prosecution examined 5 witnesses- original complainant, panch witness, sanctioning authority, one eye witness present in the office of accused and the Investigating Officer. The defence witness has examined one defence witness

4. The accused submitted his written explanation under Section 313 of Criminal Procedure Code,1973.

5. Accused case: - He had never accepted currency notes. The complainant entered the office and threw currency notes on his table. ACB officials entered the office and forced him to pick those notes from the table. Since the appellant refused to do so, they assaulted him. The appellant sustained an injury to his eye. He has been falsely implicated in this case.

6. The learned trial court passed the judgment against the accused of an offence punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. The accused challenged the said judgment by filing the present appeal.

The Issue of the Case

Whether the prosecution had proved his case beyond all reasonable doubt?

The Observations of the Court

1. The Honourable Bombay High Court scrutinized the evidence of the witnesses and summarised the differences in the evidence which creates doubt about the authenticity of the prosecution case as follows:

2. In the cross-examination complainant stated that his conversation reflected in examination-in-chief that he had been to Satara on 20th May 2010 is incorrect. Apparently, the complaint is antedated.

3. As per rules provided in the Criminal Manual issued by the High Court of Bombay, neither tape-recorder nor cassettes, FSL Report was proved in the trial which indicates that the prosecution has suppressed genesis of the prosecution case and the evidence.

4. The Investigating Officer admits that not a single paper in connection with the granting electrical connection to the complainant was found in the office of the accused and all the papers were lying at Aundh.

5. Investigating officer, in his cross-examination, admits that the date on demand verification panchanama was wrongly mentioned and hence, the whitener was applied and thereafter, the date was mentioned. There was no initial of any public servant made at the time of correction of the date. Thus, it is clear that demand verification panchanama seems to be a tampered document and the possibility of the same being an anti-dated document cannot be ruled out.

6. Complainant admitted in cross-examination that the accused did not demand any amount at the time of verification and there was no demand at the time of trap, but he himself put the notes on the table. The same is also admitted by eye witness and DW1 in cross-examination.

7. The post trap panchanama and evidence of DW1 shows that there was a scuffle and the appellant sustained an injury and breaking of his spectacles.

8. The prosecution has not been able to prove the demand of bribe by the accused beyond all reasonable doubt. The evidence of witnesses discloses that the accused have not made any demand of money and the complainant was trying to offer money without their being demand.

9. Moreover, the defence has raised not only probable defence through cross-examination of the witnesses and the documents relied upon by the prosecution; but also, while leading positive evidence of (DW-1) to establish the fact that indeed, there was no acceptance of money.

10. The Honourable Bombay High Court relied on the judgments of Ramjanam Singh V/s. The State of Bihar – AIR 1956 SC 643 and Yuvraj S/o. Chintaman Selokar V/s. State of Maharashtra – 2012 ALL MR (Cri.) 2921. These decisions deal with the requirement of demand made by the accused to convict him for offences under the Prevention of Corruption Act, 1988.

The Decision Held by the Court

1. The Honourable Bombay High Court allowed the appeal and quashed and set aside the judgment and order passed by learned Special Judge and Additional Sessions Judge Vaduj, thereby, convicting the appellant for the offence punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. The appellant is acquitted for the said offences.

2. The appeal stands disposed of accordingly.

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