30 Jun 2121

The recovery of contaminated money is insufficient to convict someone of bribery. The demand must be demonstrated unambiguously - Bombay High Court

Case : The State of Maharashtra v. Srirang Dagaduji Bale Criminal Appeal No. 1073 of 2007

Court : Bombay High Court

Bench : Justice K. R. Shriram

Decided on : 30 Jun 2121

The Relevant Statutes

Section 7, 13(1)(d), 13(2), 20 of the Prevention of Corruption Act, 1988

Section 313 of the Code of Criminal Procedure, 1973

Brief Facts & Procedural History

1. The prosecution claims that the complainant, Sambhaji Namdeo Sakhare (P.W.1), and his family members were issued with a notice alerting them of a compensation payment of Rs.1,19,290/- due to the purchase of their land. The warning was issued by the Maval Sub-Sub-Divisional Division's Officer's office. The sum of Rs.1,19,290/- included Rs.30,000/- for compensation for the construction on the purchased land.

2. When P.W. 1 went to the Maval office of the Sub-Divisional Officer to collect the compensation, the accused requested Rs.1,000 for drafting and handing over a cheque for Rs.30,000 out of the entire compensation. Because P.W. 1 did not have so much money, it is claimed that the accused requested him to bring it on the next date, when P.W. 1 could come and pick up the check. As a result, complainant P.W. 1 approached A.C.B. and filed a complaint. The raiding group proceeded to the accused's office once the pre-trap panchanama protocols were fulfilled. P.W. 1 Complainant and P.W. 2 Shadow Panch Prabhakar Gaikwad met with the accused at that time, who told them to return later. P.W. 1 and P.W. 2 returned to the pre-trap panchanama procedures and met with the accused, who told them to return the next day. P.W. 1 and P.W. 2 embarked on the raid on August 12, 2003, after completing the pre-trap panchanama procedures. On that day, the accused obtained the complainant's signature on a receipt with a revenue stamp and advised P.W. 1 that the responsible officer was unavailable and that he should return.

3. After completing the pre-trap panchanama rituals, the raiding group returned to the accused's office. When they arrived in the accused's office, they were ordered to return in the evening, after which P.W. 1 and P.W. 2 emerged. When the complainant and panch left the accused's office in the evening, the accused gave the complainant a check, and when the complainant and panch left, the accused proceeded to the office's water cooler. While sipping water, the accused made a hand motion to the complainant requesting money, and the complainant then gave over marked cash to the accused, who received it with his left hand and placed it in the left side pocket of his pants.

4. The complaint then walked outside and gave the raiding party the agreed-upon signal. The A.C.B. officer, his staff, and Panch No. 2 entered the accused's office. P.W. 2 shadow panch sat in the office, pointing to the accused, who was standing near a cabinet, and informed him that the notes had been approved. They quickly grabbed the accused's hands and began searching the cabinet. The second panch witness discovered not just the designated cash but also other sums in the closet. Under ultraviolet light, the marked money was examined. Powder signs of anthracene were discovered. Under an ultraviolet lamp, the accused's hands and clothes were examined, and bluish shimmering was discovered on the left hand and the left side inner portion of the left pocket of the accused trouser. Following that, a post trap panchanama was created, an investigation began, and once the investigation was completed, paperwork was forwarded to the sanctioning authority. The charge sheet was submitted after the sanction order was received. The charges were fabricated. Accused claimed to be tried and pleaded not guilty.

5. After reviewing the evidence, the Trial Court determined that the accused must be acquitted. The complainant challenged the decision and judgement in the Honourable High Court of Judicature at Bombay.

The Issue(s) of the Case

Whether the impugned order and judgment dated 5 August 2006 valid?

The Observations of the Court

1. Honourable High Court of Judicature at Bombay observes that the law on the subject is clear: demand of unlawful gratification is a requirement for an infraction under the Prevention of Corruption Act, 1988 to be committed. When the substantive evidence in the case is unreliable, just recovering tainted money will not suffice to condemn the accused unless there is proof of bribe payment or that the money was received freely as a bribe. In the absence of any proof of demand and acceptance of the amount as unlawful gratification, the mere receipt of the money by the accused is insufficient to establish guilt. As a result, the accused bears the burden of rebutting the statutory presumption raised under Section 20 of the Prevention of Corruption Act, 1988 by presenting direct or circumstantial evidence to establish with reasonable probability that the money was accepted by him for reasons other than those listed in Section 7 of the Prevention of Corruption Act, 1988.

2. When using the provisions of Section 20 of the Prevention of Corruption Act, 1988, the court is only obligated to evaluate the accused's answer, if any, based on preponderance of likelihood rather than evidence beyond all reasonable doubt. The prosecution must first establish the basic facts before the accused is asked to explain how the money in question came to be in his possession. The complaint is a partisan and interested witness who is anxious about the trap's success, and his testimony must be put to the same test as that of any other interested witness. Before convicting an accused individual in a legitimate case, the court may seek independent corroboration. [The state of Punjab vs. Madan Mohan Lal Verma, 13 Supreme Court Cases 153 (2013)]

3. Honourable High Court of Judicature at Bombay also observes that the complainant's testimony is riddled with discrepancies, as well as conflicts with the testimony of PW-1, PW-2, and PW-4. The complaint is a vested and partisan witness who is worried about the trap's success, and his testimony must be thoroughly scrutinised.

4. Referring to the case of Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725, The Apex Court points out that the Prevention of Corruption Act of 1947 holds that the mere recovery of tainted cash is insufficient to establish the accused's guilt. It is well established that when witnesses give two contradictory claims, their testimony becomes untrustworthy and unworthy of belief, and in the absence of exceptional circumstances, no conviction may be based on their testimony.

5. Referring to the case of Khushalchand Yashwant Gaikwad Vs. The State of Maharashtra 2018 SCC Online Bom. 1073, A learned single Judge of the Honourable High Court of Judicature at Bombay has also held that it is well-settled law that mere possession and recovery of currency notes without proof of demand will not bring the offence under Section 7 of the Prevention of Corruption Act, 1988 home, because the demand of illegal gratification is a sine qua non for the offence to be committed. The same will be conclusive in the case of an offence under section 13 (1) (d) of the Prevention of Corruption Act, 1988 because 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 in the absence of any proof of demand for illegal gratification. The presumption that such gratification was obtained for performing or forbearing to conduct any official act may be derived only based on proof of receipt of unlawful gratification under section 20 of the same Act. There will be no proof of acceptance until there is proof of demand for unlawful satisfaction.

6. Honourable High Court of Judicature at Bombay also observes that There have been an acquittal, therefore there is a twofold presumption in favour of the accused. To begin with, the accused has the right to a presumption of innocence under the fundamental principle of criminal law, which states that everyone is assumed innocent unless proven guilty by a competent court of law. Second, once the accused has been acquitted, the trial court reinforces, reaffirms, and strengthens the assumption of his innocence. The Sessions Court correctly recognised that the prosecution had failed to show its case in acquitting the accused.

The Decision Held by the Court

1. Honourable High Court of Judicature at Bombay held that The Trial Court cannot be shown to be acting illegally, improperly, or in violation of the law. The acquittal order does not need to be changed.

2. In light of the pendency of this appeal, the Government/Appropriate Authority shall makeover to respondent all pensionary or other benefits/dues delayed within 30 days of obtaining a copy of this order. If the accused's promotions or increments have been harmed as a result of this matter, the concerned Authority/Department will pay, proceed, and calculate as if there had never been any such matter on record against the accused, factoring in all promotions and increments that the accused would have been entitled to, and all amounts shall be paid within 30 days.

3. After 30 days, the Government/Appropriate Authority must pay respondent interest at a rate of 12% per annum.

4. For reimbursing the benefits/dues as specified above, no authority shall seek a certified copy. All parties must act on a certified copy of this order. A certified copy has been expedited.

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