Prakash Harishchandra Mandalik v. The State of Maharashtra

2 The learned Special Judge, (Under Prevention of Corruption Act) Pune, at Pune by judgment and order dated 30th August, 2004 convicted the appellant for Shambhavi

3 Prosecution case and evidence: In January, 2000, Shankar Narayan Kadam, (Complainant), sought registration of his proposed Shivshankar Co-operative Milk Society (Proposed). Mr. Jabale, Assistant Registrar, Co-operative Societies, was empowered to grant registration and required permissions. At the relevant time, the Complainant was a Secretary of another co-operative milk society, then was operating in the same village, where registration of proposed society was sought. Proceedings before Mr. Jabale, Assistant concluded the hearing on 28th September, 2000. Roznama of the proceedings before the Assistant February, 2001, Mr. Jabale had granted permission to proposed Shivshankar Co-operative Milk Society to collect milk from its members and open bank account. I have perused the said permission-cum-order dated 28th February, 2001. It shows, several documents were submitted by the complainant to the Assistant Registrar for grant of registration. Thus, to be stated that after 28th September, 2000, no further documents were required to be submitted by the complainant in relation to his proposal.

4 It may be stated that the appellant, a public servant was attached to the ofce of the Assistant record, I could not fnd any submissions were ever made by the appellant-accused in the proceedings relating to registration of co-operative milk society. Rather, what appears from the evidence is that, appellant was not required to do or discharge any of his duties in respect of proceedings fled by the complainant seeking registration of his society. At-least other evidence does not suggest that.

5 Be that as it may, the evidence of the complainant shows, he was aware and knew that the society on 28th February, 2001. These facts are not in dispute.

6 In the backdrop of the aforesaid undisputed facts, I have perused the evidence of the complainant and complaint at Exhibit 10/2. What appears from his complaint is that, on 28th February, 2001, he had been to the Ofce of the Assistant Registrar and met the accused, who at the relevant time was attached to the enquired with him about the ‘permission’ for collecting the milk and for opening bank account, he was told by the accused unless he forwards note-sheet to the but he would submit note-sheets after Rs.5,000/- were paid to him. Complainant in precise words, in his complaint stated that “R;kosGh lq/nk eaMyhd Eg.kkkys dh: 5]000&@ fnY;kf’kok; nqw/kladyu o cWd [kkrs m?kM.;kph ijokuxh feGs.kckcr eh uksV~l r;kj d:u f’kQkjl dj.kkj ukgh-” Disagreeing with the complainant, next day complainant reported this fact to the ofce of the Anti-Corruption. His complaint was reduced into writing on 1st March, 2001 (Exhibit 10/2). In pursuance to the complaint, pre-trap panchanama was drawn on 1st March, 2001. Two panch witnesses verifed the complaint and pre-trap panchanam. Mr. Nasir Shaikh, (P.W.2), Witness accompanied the complainant to the ofce of the accused. He would depose that in his presence, accused demanded Rs.1,000/- from the complainant, as was decided and agreed a day before and accordingly, accused accepted Rs.1,000/- from the complainant. No sooner than raiding party arrived and after taking personal search, governments currency note of Rs.1,000/- was recovered from the person of the accused. Tainted notes had traces of Anthracine powder.

7 What is unfolded in the evidence is that complainant knew very well that the Assistant Registrar by his order dated 28th February, 2001 had permitted the proposed society, to collect the milk and open bank account. Proceedings before the Assistant Registrar do not suggest that the accused was required to make any submissions or submit note-sheet while for granting the permission to the proposed society of the complainant. Therefore, it is to be held, accused had no role or was required to discharge any ofcial duty in relation to the proposal submitted by the complainant’s proposed society to the Assistant Registrar.

8 In view of the facts emerging from the evidence, question is whether alleged demand of Rs.5,000/-/Rs.1,000/- by the accused from the complainant on 28th February/ 1st March, 2001 and its acceptance was gratifcation other than legal remuneration, as motive for doing or forbearing to do any ofcial act (emphasis supplied). My answer is in negative.. Reasons are; Firstly, On 28th February, 2001 Mr. Jabale, Assistant Registrar, had granted permission as sought by the proposed society; secondly, complainant knew, accused had no authority to process his proposal; thirdly, on the given date, Mr. Jabale was present in the ofce and the complainant would have collected permission from Mr. Jabale; fourthly, he knew Mr. Jabale was only authority to issue permission. It may be stated that prosecution has not examined Mr. Jabale. In the given set of facts and circumstances, complainant knew that the appellant was not supposed to, or required to forward/submit note-sheet either on 28th February, 2001 or 1st March, 2001. As such, question is why the complainant had alleged that accused demanded Rs.5,000/- from him for forwarding note-sheets to the Assistant Registrar.. In the case of Shamsul Huq v. King Emperor, giver of a bribe and the bribe was supposed to have been ofered to a sergeant after the case against the person had already been dismissed. It was held that the accused had not committed any ofence, but the reasoning upon which this conclusion was reached was as follows: “Now, on the 21st June it was not within the power of the Sergeant to show any favour to the petitioner, who had already been discharged by the Magistrate and no money could have been paid to him as a motive or reward for doing anything for the petitioner.”. Ratio of the case, therefore, appears to be that assuming even that money was paid in-as-much as ofcer was aware that the case against him had been dismissed even if money had been ofered, it could not have been ofered as motive or reward for doing anything for the petitioner.. In my view, ratio in the aforesaid judgment applies to the facts of the case at hand.

9 Be that as it may, the essential ingredients of Section 7 of the PC Act are that person accepting gratifcation should be a public servant and to accept gratifcation for himself or another and gratifcation should be as motive or reward for doing or forbearing to do any ofcial act in exercise of the ofcial duties.

10 Therefore, it is to be stated that provisions of Section 7 of the PC Act would get attracted where public servant obtains or agrees to accept from any person any gratifcation other than legal remuneration as reward for doing or forbearing to it any ofcial act. Therefore, at the frst place, prosecution ought to have established that the amount allegedly demanded by the accused was for doing or in discharge of his ofcial duty in connection with the proposal/permission sought by the complainant on behalf of his proposed cooperative milk society. Evidence shows, the complainant had been to the ofce of the Sub-Registrar on 28th February,2001, he met Assistant Registrar, who then told him that the permission was already granted. Under these circumstances, it is to be stated that neither on 28th February nor on 1st March, 2001, appellant-accused was required to do anything more in relation to permission sought by the complainant on behalf of proposed milk co-operative society.

11 It is settled law that acceptance of money is not sufcient for convicting the accused under Sections 7 and 13(1)(d) of the PC Act. There must be evidence on record that accused obtained any amount by corrupt or illegal means other than remuneration for doing or forbearing to do any ofcial act.

12 The learned Additional Public Prosecutor, however, relied upon Section 20 of the PC Act to contend that once prosecution has proved that the public servant has accepted or obtained or attempted to obtain any undue advantage from any person, it must be presumed, unless the contrary is proved that he accepted or obtained that undue advantage as motive or reward under Section 7 of the PC Act for performing a public duty.. The evidence on record has not established that tainted money Rs.1,000/- recovered from the person of the accused was accepted by him as reward (other than remuneration) for discharging the ofcial duty. At the cost of the repetition, it may be stated that date on which accused allegedly demanded the money, i.e., February and 1st March, 2001, appellant was not required to do any act or perform any such act concerning or in relation to the permission sought by the complainant on behalf of the proposed co-operative milk society. In other words, the prosecution has not laid and establish the foundation on facts before taking recourse to permission under Section 20 of the PC Act.

13 In the case of State of Maharashtra v., the Hon’ble Apex Court has held in paragraph 16 as under: