The Bombay High Court acquitted a police constable for lack of proof of demand and acceptance of bribe, emphasizing that mere recovery of tainted money without corroborated evidence is insufficient for conviction under the Prevention of Corruption Act.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 502 OF 2013 Sudhakar Vasant Patil ..Appellant
v/s.
The State of Maharashtra ..Respondent/s …. Mr. Rajeev N. Kumar a/w. Aditya Parmar for the Appellant. Mr. S.V.Gavand APP for the Respondent-State.
CORAM : ANUJA PRABHUDESSAI, J.
DATED : 17th NOVEMBER, 2021.
ORAL JUDGMENT
1. This is an Appeal under Section 374 of Cr.P.C. directed against the Judgment and Order dated 26.04.2013 in Special Case No.12 of 2010. By the impugned judgment, the learned Special Judge, Raigad, Alibag, has held the Appellant guilty of the Ofences under Section 7, 13(1)(d) r/w. 13(2) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a term of 3 years with fne of Rs.10,000/- i.d. to undergo rigorous imprisonment for 9 months in respect of each of the two ofences. Whereas, the co-accused Rakesh Jadhav has been held guilty of ofence under Section 12 of PRASANNA P Prevention of Corruption Act and sentenced to undergo r.i. for a period of three years with fne of Rs.5000/- I.d. to undergo r.i. for a period of nine months.
2. Briefly stated, it is the case of the prosecution that the Complainant- Shivlal Lambaji Patel (PW[1]) is a scrap dealer. He is carrying on the business in the name & style as Bhavani Scrap Material and Paper Mart, in Sector 13 at New Panvel. In December 2008, four policemen visited his shop with one accused person who claimed to have sold 35kg of stolen copper to him. The Complainant-Shivlal was taken to Kalamboli Police Station for inquiry. It is alleged that the Appellant Sudhakar Patil, a head constable of Kalamboli Police Station demanded Rs.30,000/- from the Complainant to absolve him of the ofence in the said crime. They both negotiated and scaled down the bribe amount to Rs.15,000/- which was paid by the Complainant.
3. It is the case of the prosecution that the Appellant also demanded Rs.3000/- per month to be paid on 25th day of every month for allowing transportation of scrap material without being checked. The Complainant complied with the demand and paid Rs.3000/- every month to accused No.2 Rakesh Jadhav, who used to collect the said money on behalf of the Appellant.
4. On 26.07.2009, the Appellant told the Complainant that the payment of two months was due and instructed him to make the payment the same evening. The Complainant allegedly recorded the conversation between him and the Appellant in a voice recorder. On 27.07.2009 the Complainant- Shivlal Patel lodged the complaint at Exhibit 15 with the ACB ofce, Vashi.
5. PW[4] – Jadhav, Dy. S.P. ACB, Vashi, secured presence of panchas and explained the details of the complaint and played the voice recorder in their presence. Under instructions of PW4- Jadhav, the Complainant called the Appellant to inquire about the amount due. The Appellant told him that he was out of station and would talk later. The Appellant thereafter called the Complainant from a mobile phone last three digits of which were
447. The Appellant acceded to the request of the Complainant and reduced the bribe amount to Rs.5,000/- and further instructed him to handover the same to the co-accused-Rakesh Jadhav. The conversation between them was recorded in a voice recorder, which was later played in presence of panchas.
6. Upon verifying the factum of demand, PW[4] decided to lay a trap. The conversation recorded in the voice recorder was later uploaded in a computer and a transcript of the same was taken in presence of panchas. Five currency notes of denomination of Rs.1000/-, produced by the Complainant were smeared with anthracene powder. Demonstration of anthracene test was given in presence of panchas. The Complainant was given a voice recorder with instructions to switch it on and record conversation between him and Rakesh. Other steps which were to be taken in the course of the trap were explained and necessary instructions were given to the Complainant and the panchas. A pre-trap panchanama (Exhibit-30) was drawn.
7. The Complainant and the raiding party proceeded to New Panvel. The Complainant entered the shop with one of the panchas (PW[2]) while the other members of the raiding party waited in the close vicinity of the shop. It is stated that coaccused Rakesh Jadhav visited the shop of the Complainant to collect the money. The Complainant Shivlal asked Rakesh how much money was to be paid. Since Rakesh had told him that he did not know the amount due, the Complainant called the Appellant from his mobile phone. The Appellant did not receive the call. The co-accused Rakesh called the Appellant and later conveyed to the Complainant that the Appellant had demanded Rs.5000/-. The Complainant handed over the tainted currency notes of Rs.5000/- to Rakesh Jadhav. He accepted the money and placed the same in his shirt pocket. The Complainant thereafter signaled to the raiding party. P.W.[4] Jadhav and the other members of the raiding party rushed to the spot and held the hands of Rakesh Jadhav. The tainted notes of Rs.5000/were removed from his pocket and examined under ultra violet lamp. The tainted notes and the hands of the Appellant emitted bluish shining glow. The serial number of the notes tallied with the number mentioned in the pre-trap panchanama. The tainted currency notes, mobile phone of the Appellant and other incriminating material was seized under panchanama. The conversation recorded in Digital Voice recorder was uploaded in the computer and transcript of the same was prepared. A Post-trap panchanama recording details of the trap was drawn in presence of panchas.
8. The Appellant was subsequently arrested under arrest panchanama at Exhibit 63. The voice sample of the Appellant was taken in presence of panchas under panchanama at Exhibit
65. The specimen voice sample of the Appellant and the questioned conversation between the Complainant and the Appellant were sent to forensic laboratory for analysis. The Investigating Ofcer obtained sanction from the Sanctioning Authority-PW3-Ahmed s/o Mukhtar Ahama Javed, and upon completion of investigation, fled chargesheet against the Appellant and the co-accused Rakesh Jadhav before the Special Judge, Raigad, Alibag for the ofences as stated above.
9. The Appellant and the co-accused were charged for ofences under Sections 7 and 8 of Prevention of Corruption Act. The Appellant was also charged for ofence under Section and 13 (1)(d) of Prevention of Corruption Act. The Appellant and the co-accused pleaded not guilty to the charge and claimed to be tried.
10. The prosecution in support of its case examined four witnesses. The statement of the Appellant and the co-accused was recorded under Section 313 Cr.P.C. The case of the Appellant and the co-accused was of total denial. The Appellant has stated that the co-accused Rakesh Jadhav, who used to supply labourers at Kalamboli Police Station had told him that he had supplied to the Complainant 10 labourers for 3 days for loading scrap material and that the Complainant had not paid the charges of Rs.6000/-. He has stated the in the month of February 2008 the Complainant had visited the police station in connection with crime No.354 of 2008 and that he had told the Complainant to pay the charges of the labourers to Rakesh Jadhav.
11. Upon considering the evidence on record, the learned Special Judge held that the prosecution had established the guilt of the Appellant and the co-accused beyond reasonable doubt and convicted and sentenced them as stated above. Being aggrieved by the conviction and sentence, the Appellant has fled this appeal.
12. The co-accused Rakesh Jadhav had also challenged the impugned judgment in Criminal Appeal No. 661 of 2013. Said Rakesh Jadhav expired during the pendency of the Appeal. The Death Certifcate was placed on record. By Order dated 12.9.2013 Criminal Appeal No.661 of 2013 has been disposed of as abated.
13. Mr. Rajiv Kumar, learned Counsel for the Appellant states that the evidence of PW[1] with regard to demand of Rs.30,000/is not corroborated by any other independent evidence. Learned Counsel for the Appellant further submits that the prosecution has not been able to establish that PW[1] Shivlal had made a phone call to the Appellant. He further submits that the Report of CFSL also does not support the case of the prosecution that the voice recorded in the voice recorder is that of the Appellant. He submits that the Complainant has admitted that the co-accused had supplied labourers. He submits that the prosecution has failed to establish that the co-accused had accepted the money on behalf of the Appellant.
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14. Learned Counsel for the Appellant submits that mere recovery of tainted money, without proof of demand, does not conclusively establish ofence under Section 7 or 13(1)(d) of the Prevention of Corruption Act. He has relied upon decision of the Apex Court in P. Satyanarayan Murthy vs. District Inspector of Police in Criminal Appeal No. 31 of 2009 and Panalal Damodar Rathi vs. State of Maharashtra (1979) 4 SCC 526. Relying upon the decision of the Apex Court in Rabindra Kumar Dey vs. State of Orissa (1977)
AIR SC 170 he submits that the onus was on the prosecution to prove afrmatively its case beyond reasonable doubt. He contends that the prosecution has failed to prove the basic ingredients of the ofence viz. demand and acceptance of illegal gratifcation. He therefore contends that the learned Judge has grossly erred in convicting the Appellant sans the proof of demand and acceptance, which is a sine qua non for both ofences under Sections 7 and 13 of the Prevention of Corruption Act. He submits that the prosecution having failed to discharge the burden, the learned Judge was not justifed in convicting and sentencing the Appellant as stated above.
15. Learned APP submits at the relevant time the Appellant was a Head Constable, posted at Kalamboli Police Station and hence a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act. He contends that the evidence of the Complainant (PW[1]) proves demand and acceptance of Rs.15,000/- by the Appellant to absolve the Appellant in a criminal case. He further submits that the evidence of the Complainant further reveals that the Appellant had demanded Rs.3000/- per month as illegal gratifcation to allow transportation of scrap material and that the said money was being collected by the co-accused on behalf of the Appellant. He submits that the evidence of the Complainant proves ‘demand’ of illegal gratifcation. The evidence of the Complainant which is duly corroborated by the Investigating Ofcer and other members of the raiding party proves that the Complainant had handed over an amount of Rs.5000/- to the co-accused, who had accepted the same on behalf of the Appellant herein. He submits that the prosecution has thus established the essential ingredients of the ofence.
16. I have perused the records and considered the submissions advanced by the learned Counsel for the respective parties.
17. The Appellant has been held guilty of ofences under Sections 7 and 13 (d) of Prevention of Corruption Act. The relevant extract of which, as it stood prior to 2018 amendment, reads thus:-
“7. Public servant taking gratifcation other than legal remuneration in respect of an official actit Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for
himself or for any other person, any gratifcation whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to fve years and shall also be liable to fne.. --- --- --- --- --- --- --- ---
“13. Criminal misconduct by a public servant t
(1) A public servant is said to commit the ofence of
criminal misconduct,-
--- --- --- ---
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) --- --- --- --- ---.
18. It would be also relevant to refer to the statutory presumption as stipulated in Section 20 of the PC Act, which reads thus:-
20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an ofence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratifcation (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratifcation or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an ofence punishable under section 12 or under clause (b) of section 14, it is proved that any gratifcation (other than legal remuneration) or any valuable thing has been given or ofered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or ofered to give or attempted to give that gratifcation or that valuable thing, as the case may be, as a motive or reward such as mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in subsections (1) and (2), the Court may decline to draw the presumption referred to in either of the said subsections, if the gratifcation or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
19. In the case of P. Satyanarayan Murthy (supra) the Hon’ble Supreme Court while considering the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act has reiterated that demand of illegal gratifcation is sine qua non to constituting ofence under Sections 7 and 13(1)(d) of the PC Act. The relevant paragraphs 18 to 22 of the judgment read thus:
18. This Court in A Subair v. State of Kerala (2009)6
SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal ofence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratifcation, which are vital ingredients necessary to be proved to record a conviction.
19. In State of Kerala and another vs. C.P.
Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same ofences, held that mere recovery by itself, 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.
20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an ofence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratifcation, 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. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an ofence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an ofence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratifcation for doing or forbearing to do any official act. Such proof of acceptance of illegal gratifcation, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
21. The proof of demand of illegal gratifcation, thus, is the gravamen of the ofence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratifcation 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.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratifcation would be fatal and mere recovery of the amount from the person accused.
20. In the decision in Panalal Damodar Rathi (supra), the Apex Court while emphasizing the need of corroboration of the Complainant’s evidence in corruption cases has observed thus:
“7. 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 ofers 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…...
21. In State of Maharashtra vs. Dnyaneshwar Laxmanrao Wankhede (2009) 15 SCC 200 the Hon’ble Supreme Court has held thus:- “16. Indisputably, the demand of illegal gratifcation is a sine qua non for constitution of an ofence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an ofence, viz. demand, acceptance and recovery of the amount of illegal gratifcation have been satisfed or not, the Court must take into consideration the facts and circumstances brought on the record in their entirty. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would difer. Before however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provision of Section 20 of the Act, the Court is required to consider the explanation ofered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt..
22. It is thus well settled that the proof of demand of illegal gratifcation is the gravamen of ofence under Sections 7 and 13 (1)(d) of the PC Act. In the absence of proof of demand, mere acceptance of any amount by way of illegal gratifcation or recovery thereof would not ipso facto be sufcient to bring home the charge under these two sections of the Act. It is equally well settled that presumption under Section 20 of the PC Act can be drawn only in respect of ofence under Section 7 of the PC Act. Furthermore, such presumption can be drawn only on proof of acceptance of illegal gratifcation, which can follow only if there is proof of demand.
23. In the instant case, it is not in dispute that the Appellant was a head constable attached to Kalamboli police station and a public servant within the meaning of Section 2(c) of the PC Act. The Appellant has also not challenged the validity of sanction given by PW3-Police Commissioner, Navi Mumbai-Ahmed s/o Mukhtar Ahamad Javed. Considering the nature of accusations against the Appellant the question which falls for consideration is whether the prosecution has established that the Appellant demanded and accepted for himself illegal gratifcation and whether by corrupt or illegal means the Appellant obtained for himself any valuable thing or pecuniary advantage.
24. In this regard PW1-Shivlal Patel, has deposed that he is in the business of purchase and sale of scrap material. He has a shop at Panvel and is conducting the business in the name & style of Bhavani Scrap Metal and Paper Mart. He has deposed that in December 2008 four police personnel from Kalamboli Police Station visited his shop. They had brought one person with them, who informed the police that he had sold 35 kg of stolen copper to the Complainant. PW[1] has deposed that the police took him to the police station. The Appellant, who was on duty as head-constable demanded illegal gratifcation of Rs.30,000/- to close the criminal case against him. Upon negotiations, the Appellant reduced the amount to Rs.15,000/-. PW[1] claims that he paid the said money to the Appellant.
25. The evidence of this witness regarding demand and acceptance of Rs.15000/- is not corroborated by any other witness. The prosecution has not given details of the criminal case in which the said accused person had alleged that the Appellant had purchased stolen property. It is also not known whether the Complainant was arrayed as an accused, whether the Appellant was investigating the said crime and whether he had demanded the said illegal gratifcation for himself on an assurance of closing the investigation against the Appellant and/or whether the amount was to be paid to any other person who was investigating the said crime or who was competent to close the investigation of the said crime. The evidence in this regard is not forthcoming. In the absence of such material particulars no reliance can be placed on a vague and uncorroborated testimony of the Complainant. The prosecution has thus failed to prove demand and acceptance of bribe amount of Rs.15,000/-.
26. The Complainant has further deposed that the Appellant had given him his phone number, the last 3 digits of which were 602. He claims that the Appellant had demanded Rs.3000/- per month to enable him to transport the scrap material without any action. He claims that he was regularly paying an amount of Rs.3,000/- on 25th day of every month, which as per the instructions of the Appellant, was accepted by the co-accused Rakesh Jadhav..
27. PW[1] has deposed that on 26.7.2009 he received a phone call from the Appellant. He did not receive the phone call since his mobile phone was not in order. Later he called the Appellant from the mobile phone of his friend, the last two digits of which were 12. He claims that the Appellant had told him that the amount of two months was balance and directed him to make the payment by evening. He told the Appellant to give him two days time to make the payment. He recorded the conversation between him and the Appellant.
28. On 27/7/2009 he went to the ACB Ofce at Vashi and narrated the incident to PW[4] Narendra Jadhav, DYSP, ACB, Vashi. PW[4] recorded the complaint and thereafter secured presence of two panchas. Contents of the complaint were explained to the panchas. Thereafter, as per the instructions of PW[4] Jadhav, PW[1] called the Appellant on his mobile phone having last three digits as 602 and asked him why he was not reducing the ‘hafta‘ (installment of bribe amount). The Appellant told that he was out of station and he would call later. PW[1] has deposed that the said conversation was recorded in the voice recorder, which was uploaded on the computer and transcript of the same was prepared. PW[1] has deposed that he did not receive telephone call from the Appellant till 6.30 p.m. so as instructed by PW4-Jadhav he returned home.
29. The Complainant went to ACB Ofce again on 28.07.2009 at 11.00 a.m. The panchas were present in the ACB ofce. PW[4] informed him that verifcation of demand was to be made. They were explained the procedure of verifcation. PW[1] was once again directed to call the Appellant. Accordingly, PW[1] called the Appellant on his mobile phone, the last digit of which was
602. The Appellant did not answer the call. About 5 to 10 minutes later PW[1] received a call from an unknown number, the last three digits of which were 447. He has deposed that the speaker had disclosed his identity as Sudhakar Patil. PW[1] told him to reduce the ‘hafta’ to which the Appellant told him to pay Rs.5500/-. PW[1] told him he would pay him Rs.5000/- to which the Appellant told him that his person Ramesh would come to collect the said money at about 4.00 p.m.
30. The conversation between the Appellant and PW[1] was recorded in a voice recorder. The conversation from the voice recorder was once again uploaded on a computer and thereafter CD and transcript of the same was prepared in presence of panchas. The conversation revealed that the Appellant had demanded illegal gratifcation of Rs.5000/- which was to be paid to the co-accused Rakesh Jadhav. Verifcation demand panchanama was drawn and trap was arranged. Upon complying with all essential pre-requisites, anthracene powder was applied to the currency notes being 5 notes of denomination of Rs.1000/- each. The said amount was kept in the pocket of PW[1]. A digital voice recorder was kept in the pant pocket of PW[1], the microphone of which was attached to his banian. The pre-trap panchanama was drawn in presence of pancha witnesses.
31. The members of the raiding party and the Complainant proceeded to the shop of the Complainant. PW[1] went to his shop alongwith a pancha witness (PW[2]) while the other members waited outside the shop. The microphone attached to the banian of the Complainant was switched on. At about 6.00 p.m. the co-accused came to his shop. The co-accused informed the Complainant that he was not aware about the quantum of money to be collected. PW[1] therefore called the Appellant from his mobile phone. He did not receive the phone. The co-accused told him that he was in a meeting. The coaccused called the Appellant. There was some conversation between the Appellant and the co-accused. The co-accused told him that the Appellant had demanded Rs.5000/-. PW[1] removed the cash of Rs.5000/- from his pocket and handed over the same to the co-accused Rakesh. He kept the same in his shirt pocket. PW[1] gave a signal to the raiding party, after which PW[4] and other members entered the shop. They disclosed their identity. PW[4] placed the notes recovered from the pocket of the co-accused under ultra violet light. These notes emitted bluish glow. The number of the said currency notes tallied with the serial number recorded in the pre-trap panchanama. The said notes as well as the voice recorder was seized under panchanama in the presence of panchas.
32. PW[2] – Sunil Bajirao Nimase is the panch witness. He was explained the contents of the complaint (Exhibit – 15). He has deposed that under the instructions of PW[4], the complainant had called the Appellant but he had not received the call. Later, the Complainant received a phone call from the Appellant. The phone of the Appellant was put on speaker mode. PW[2] has deposed that they heard the person speaking from the other end instructing the complainant to give Rs.5000/- to one Rakesh. The said conversation was recorded in a voice recorder which was later uploaded on laptop and the CD was prepared. After verifying the demand, a pre-trap panchanama was drawn.
33. PW[2] has given the details of pre-trap panchanama (Exhibit- 28), recorded in his presence. He claims that he had accompanied the Complainant to his shop. He claims that the co-accused – Rakesh Jadhav came to the shop at about 6.00 p.m. and the complainant asked him whether he was Rakesh. When he answered in the afrmative, the Complainant called the Appellant. The Appellant did not receive the phone. Thereafter the co-accused -Rakesh called the Appellant and asked him how much money was to be collected from the Complainant. Later he told the Complainant to pay Rs.5000/-. PW[2] also claims that the complainant had handed over the tainted notes to the Appellant and after the pre-determined signal, PW[4] and other members of the raiding party entered the shop and held hands of the Appellant and later recovered the notes accepted by the Appellant. He has deposed that these notes when placed under UV lights showed traces of anthracene powder. He has confrmed the contents of post-trap panchanama.
34. PW[4] – Rajendra Kashinath Jadhav, the Investigating Ofcer also confrms the contents of the Complaint, steps taken in verifcation of the complaint and the contents of the pre-trap and post-trap panchanama. He has deposed that the conversation between the Complainant and the Appellant was recorded in a voice recorder and the same was transferred on a computer and a CD and transcript was prepared. He had taken voice sample of the Appellant and forwarded the voice sample and the CD having questioned conversation between the Appellant and the Complainant to CFSL for analysis.
35. The evidence of PW[1], PW[2] and PW[4] reveals that the coaccused – Rakesh Jadhav had come to the shop of the complainant and had accepted marked notes handed over by the complainant. As noted above, mere acceptance or recovery of money does not constitute ofence under Section 7 or 13(1)
(d) of PC Act. The question is whether the Appellant had demanded Rs.5,000/- and whether the co-accused had accepted the said amount on behalf of the Appellant.
36. The story put forth by the Complainant is that the Appellant had demanded illegal gratifcation of Rs.3,000/- per month for permitting transportation of scrap material. The complainant has alleged that said amount of illegal gratifcation was sometimes collected by the Appellant and sometimes by the coaccused – Rakesh Jadhav. It is the case of the Complainant that the Appellant had demanded illegal gratifcation of Rs.5000/and that the co-accused-Rakesh Jadhav had accepted the same on behalf of the Appellant.
37. The only corroborative evidence as regards demand is the alleged telephonic conversation between the Complainant and the Appellant, which was recorded in a CD. The Prosecution has relied upon the call record details at Exhibit 66, a perusal of which indicates that the phone number 9892683602 on which the Complainant had called was in the name of Rajinder Prajapati. No attempts have been made by the prosecution to show that the mobile phone in the name of Rajinder Prajapati was used by the Appellant herein.
38. It is also to be noted that PW[4] had taken voice sample of the Appellant (Exhibit 7). He had forwarded the same along with the cassette containing the questioned conversation (Exhibit 1, 2 and 4) between the Appellant and the Complainant to the Forensic Laboratory, Mumbai for analysis. The CFSL report (Exhibit 72) indicates that the auditory analysis of recorded questioned conversation marked Exhibit 1, 2 and 4 and specimen voice sample of the Appellant marked Exhibit 7 and subsequent acoustic analysis of voice exhibits by using Computerized Speech Lab (CSL) sample revealed that the questioned conversation (Exhibit 1, 2 and 4) were distorted as compared with the specimen voice exhibit of the speaker at
39. Thus CFSL report regarding the transcript of the conversation recorded in the CD does not prove the identity of the speaker. Therefore, the CFSL report is of no avail. Furthermore, none of the witnesses have identifed the voice of the speaker. There is absolutely no evidence to prove that the voice of the speaker as recorded in the voice recorder and later transferred in the CD was that of the Appellant. Hence, the conversation recorded in the voice recorder is of little value. In this fact situation the only evidence in respect of demand of illegal gratifcation is that of the Complainant, who, as held by the Apex Court cannot be placed on a better footing than that of an accomplice. Consequently, no conviction can be based on uncorroborated testimony of PW1-Shivlal.
40. It is pertinent to note that the Appellant in his statement under Section 313 of Cr.P.C. has stated that the co-accused had provided some casual labourers to the Complainant for loading scrap material and that the Complainant was to pay Rs.6000/to the co-accused towards the charges of these labourers. The Complainant has admitted in his cross examination that the coaccused had in fact provided labourers. This admission and absence of proof of demand probabalises the defence. Consequently, in such fact situation, the defence set up by the Appellant appears to be probable. Under the circumstances, mere acceptance of tainted notes cannot be construed to be the proof of acceptance of illegal gratifcation on behalf of the Appellant.
41. To sum up, the prosecution has failed to prove beyond reasonable doubt the demand of illegal gratifcation, which is an essential ingredient of Section 7 and 13(1)(d) of the Prevention of Corruption Act. In the absence of such evidence the conviction of the Appellant for ofence under Section 7 and 13(1)
(d) r/w. 13(2) of the PC Act cannot be sustained.
42. Hence the following order.
(i) The Appeal is allowed.
(ii)The impugned judgment and order dated 26/04/2013 in Special Case No.12 of 2010 is quashed and set aside. The Appellant herein is acquitted of the ofences under Sections 7, 13(1)(d) r/w. 13(2) of Prevention of Corruption Act. Bail bonds stand discharged. The Appellant shall furnish bond under Section 437 A of Cr.P.C. before the Special Court within a reasonable time. (ANUJA PRABHUDESSAI, J.)
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