Prakash Sukhda Sarwa v. State Of Mah.Thr.Acb Nagpur

2024:BHC-NAG:4652

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.606 OF 2005 Prakash s/o Sukhdas Sarwa, aged 45 years, occupation:- peon Mayo Hospital, r/o Manikpuri, Nagpur. ..... Appellant. :: V E R S U S ::

State of Maharashtra, (through ACB Nagpur). ..... Respondent. =================================== Shri A.C.Jaltare, Counsel with Shri R.S.Bhalerao, Advocate for the Appellant.

Mrs.H.S.Dhande, Additional Public Prosecutor for the State. =================================== CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 04/04/2024 PRONOUNCED ON : 24/04/2024

JUDGMENT

1.

By this appeal, the appellant (accused) has challenged judgment and order of conviction and sentence dated 10.11.2005 passed by learned Judge, Nagpur (learned Judge of the trial court) in Special Case No.15/2001 whereby the accused is convicted for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (the said Act) and sentenced to suffer simple .....2/-

imprisonment for one year and to pay fine Rs.1000/-, in default, to suffer further simple imprisonment for three months. The accused is further convicted for offence punishable under Section 13(1)(d) read with Section 13(2) of the said Act and sentenced to suffer simple imprisonment for two years and to pay fine Rs.1000/-, in default, to suffer further simple imprisonment for four months.

Learned Judge of the trial court directed that all sentences shall run concurrently.

2.

Brief facts of the prosecution case runs as under: In October 2000, the accused and Yadav Ganvir (acquitted accused No.1) were working as peons in Mayo Hospital, Nagpur. Complainant Sanjay Kale was qualified as apprentice in MSRTC. He was referred for his medical examination to the said hospital. The office of the Divisional Controller of MSRTC, Nagpur had supplied requisite forms to the complainant. On 12.10.2000, the complainant visited the hospital for medical examination along with forms supplied to him and obtained OPD Card. When he .....3/-

approached a counter for submitting his forms, clerk working at the window demanded him Rs.100/- and asked him to pay the amount, otherwise, his forms would not be accepted. The complainant informed that he is not having the money and, therefore, he was removed from queue. The clerk asked the complainant to come on the next day along with Rs.100/-. As the complainant was not willing to pay the amount, he approached the office of the Anti Corruption Bureau, Nagpur (the bureau) and lodged a report on 12.10.2000.

3.

After receipt of the report, office of the bureau called two panchas. In the presence of panchas, the complainant narrated the incident which was verified by panchas from the complaint. After following a due procedure, it was decided to conduct a raid and the complainant and panchas were called on the next day i.e. 13.10.2000. On the next day, the complainant produced tainted amount ten currency notes of Rs.10/-. A demonstration as to phenolphthalein powder and sodium carbonate was shown to the complainant and panchas. The said solution was applied on the tainted amount and kept in shirt pocket of the complainant. .....4/-

Instructions were given to pancha Ramesh Gawande to stay with the complainant and pancha No.2 was asked to remain along with raiding party members. The complainant was further instructed to hand over the amount only on demand. Accordingly, a pre-trap panchanama was drawn. The complainant along with panchas and members of the trap, proceeded towards the hospital. The complainant and pancha No.1 proceeded towards the hospital. The complainant approached the counter for submitting his forms. His forms were accepted and he was asked to wait. One of employees was calling names for medical examination. After some time, the complainant was called inside cabin of the Civil Surgeon. He was examined by Dr.Prashant Barwe. During that period, employee who was calling names came inside and told that he has not given the amount at the window.

At the same time, employee who was deputed at the window asked the complainant that he had not paid the amount at the window. After medical examination, the complainant came out of the cabin of the Civil Surgeon and it is alleged that the accused demanded the amount and he handed over him the said amount and he accepted the same. After acceptance of the amount, the complainant gave a .....

pre-determined signal. Immediately, the accused was arrested. Subsequently, accused No.1 was also arrested. The amount was recovered from the accused. Accordingly, post-trap panchanama was drawn. The officer of the bureau lodged report about the incident, seized relevant documents, obtained sanction to prosecute the accused, and after completing investigation, submitted chargesheet.

4.

During trial, the prosecution examined in all seven witnesses viz. Vilas Dashrath Khanke vide Exhibit-24, the ACB Constable (PW1); Sanjay Manikrao Kale vide Exhibit-26, the complainant (PW2); Ramesh Gulabrao Gawande vide Exhibit-33, the shadow pancha (PW3); Dr.Prashant Barwe vide Exhibit-44 (PW4); Dr.Wasudeo Taywade vide Exhibit-46, the Sanctioning Authority (PW5); Dr.Prakash Rangilal Singh vide Exhibit-52, (PW6), and Diwakar Ingole vide Exhibit-53, the Trap Officer (PW7).

5.

Besides the oral evidence, the prosecution further placed reliance on FIR Exhibit-24; medical examination form Exhibit-27; receipt Exhibit-28; application and affidavit of the complainant .....6/-

Exhibit-29; complaint Exhibit-30; list of articles found during personal search of the complainant Exhibit-31; pre-trap panchanama Exhibit-34; seizure memos Exhibits-35 to 40; posttrap panchanama Exhibit-41; map Exhibit-42; OPD Papers Exhibit45, sanction order Exhibit-49; report of the officer of the bureau Exhibit-55; Chemical Analysis Report Exhibit-65. 6.

After considering the evidence adduced during the trial, learned Judge of the trial court held the accused guilty and convicted and sentenced him as the aforesaid. 7.

I have heard learned counsel Shri A.C.Jaltare for the accused and learned Additional Public Prosecutor Mrs.H.S.Dhande for the State.

8.

Learned counsel for the accused submitted that the judgment impugned is without appropriate reasoning. The prosecution could not prove the demand and acceptance. The proof of demand is sine qua non for proving charge. Even sanction to prosecute the accused, as contemplated under Section 19 of the said Act, is bad in law and, therefore, the conviction of .....7/-

the accused stands vitiated on that ground itself. He further submitted that Sanctioning Authority PW5 Dr.Wasudeo Taywade was not appropriate authority to accord the sanction. The appointing and removal authority was Superintendent and, therefore, the sanction was required to be accorded by the Superintendent. Sanctioning Authority PW5 Dr.Wasudeo Taywade specifically admitted that appointment of Class-IV employees is to be made by Superintendent of IGMC Hospital and he is removing authority also. Thus, the sanction accorded by Sanctioning Authority PW5 Dr.Wasudeo Taywade is without any authority. Learned Judge of the trial court failed to appreciate the said fact. Moreover, the evidence, as to the demand and acceptance adduced by complainant PW2 Sanjay Kale and Shadow Pancha PW3 Ramesh Gawande, is not consistent and corroborative and the same evidence is liable to be discarded. Thus, the entire prosecution case fails in the light of the said inconsistencies. For all above reasons, the accused deserves to be acquitted. 9.

In support of his contentions, learned counsel for the accused placed reliance on following decisions: .....8/-

1. Criminal Appeal No.99/2010 (Kuldeep s/o Thauraji Kale and anr vs. The State of Maharashtra, through Police Station Officer, Police Station Arni, District Yavatmal) decided by this court on 8.3.2024;

2. Criminal Appeal No.508/2018 (Vitthal s/o Bhaurao Salve vs. State of Maharashtra, through Dy.S.P. (ACB), Gadchiroli, district Gadchiroli) decided by this court on 8.1.2024, and

3. Criminal appeal No.247/2005 (Wasudeo s/o Nathuji Ukey vs. The State of Maharashtra, through Police Station Officer, Police Station Andhalgaon, district Bhandara) decided by this court on 5.10.2023.

10.

Per contra, learned Additional Public Prosecutor for the State submitted that the evidence of complainant PW2 Sanjay Kale is corroborated by Shadow Pancha PW3 Ramesh Gawande proving the demand and acceptance. The amount recovered from the shirt pocket of the accused proves the acceptance. The sanction accorded is as per law and valid and, therefore, no interference is called for.

11.

In support of her contentions, learned Additional Public Prosecutor for the State placed reliance on the decision of the Honourable Apex Court in the case of Neeraj Dutta vs. State (Government of NCT of Delhi) 1.

(2023)4 SCC 731 .....9/-

12.

The sanction order is challenged on ground that it was accorded without application of mind and mechanically and, therefore, it is not valid sanction.

13.

In order to prove the sanction order, the prosecution placed reliance on the evidence of Sanctioning Authority PW5 Dr.Wasudeo Taywade, who testified that in the year 2001, he was working as Dean in IGMC, Nagpur. Appointing Authority of Peons working in the IGMC is the Dean. The powers of removal are with the Dean. He received the report from the office of the bureau. After reading reports and all documents, he prepared his individual report and accorded sanction Exhibit-49. During cross examination, he admitted that on the day of the trap, the accused was working under the Medical Superintendent of IGMC. Appointment of Class-IV Employees was by Superintendent of IGMC. He further admitted that peons were removed from services by the Superintendent of IGMC. He admitted to the extent that he asked the Superintendent to prepare the report. The report was prepared by the Superintendent of IGMC. He placed the report .....10/-

and he put his signature on the said report Exhibit-49 (the sanction order).

14.

Perusal of the sanction order reveals that the entire story of the prosecution is reproduced and in second last paragraph, it is mentioned that after carefully evaluating the evidence to prosecute the accused and accused No.1, he accorded the sanction. 15.

Perusal of the cross examination reveals that Sanctioning Authority PW5 Dr.Wasudeo Taywade was neither appointing nor removing authority of Class-IV employees from services. His evidence further shows that the sanction order is prepared by the Superintendent. Thus, it is apparent that the Sanctioning Authority is the Superintendent and not PW5 Dr.Wasudeo Taywade.

16.

The Honourable Apex in the case of Mohd.Iqbal Ahmad vs. State of Andhra Pradesh2 has held that what the Court has to see is whether or not the sanctioning authority at the time of giving the sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact coming into 1979 AIR 677 .....11/-

existence after the resolution had been passed is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. 17.

The Honourable Apex Court, in another decision, in the case of CBI vs. Ashok Kumar Agrawal 3 has held that sanction lifts the bar for prosecution and, therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. There is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. It has been further held by the Honourable Apex Court that the record so sent should also contain the material/document, if any, which may tilt 2014 Cri.L.J.930 .....12/-

the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. 18.

A sanction order should speak for itself. A sanction order showing prima facie application of mind is a valid sanction order. The prosecution is bound to prove that valid sanction is granted by .....13/-

the Sanctioning Authority. It is true that sanction order should not be so elaborate like an order of court containing detailed reasons. Ultimately, an object of grant of sanction should be able to consider evidence and material before it to come to conclusion that the prosecution in the circumstances whether to be sanctioned or forbidden.

19.

From the evidence adduced, it is clear that Sanctioning Authority PW5 Dr.Wasudeo Taywade was not the appointing authority to appoint Class-IV employees, but it was the Superintendent of the IGMC Hospital, who was appointing and also removing authority.

20.

Thus, Sanctioning Authority PW5 Dr.Wasudeo Taywade was not the appropriate authority to accord the sanction. Moreover, the sanction accorded is without application of mind as the evidence of Sanctioning Authority PW5 Dr.Wasudeo Taywade itself shows that Exhibit-49 was prepared by the Superintendent and he merely put his signature on the said report i.e. Exhibit-49. Thus, it is apparent that the sanction was accorded by Sanctioning Authority PW5 Dr.Wasudeo Taywade without application of mind. .....14/-

21.

In view of the settled principles of law, it is crystal clear that the sanctioning authority has to apply his own independent mind for generation of its satisfaction for sanction. The mind of the sanctioning authority should not be under pressure and the said authority has to apply his own independent mind on the basis of the evidence which came before it. An order of sanction should not be construed in a pedantic manner. The purpose for which an order of sanction is required, the same is to be borne in mind. In fact, the sanctioning authority is the best person to judge as to whether public servant concerned should receive protection under the said Act by refusing to accord sanction for his prosecution or not.

22.

Thus, the application of mind on the part of the Sanctioning Authority is imperative. The orders granting sanction must demonstrate that he/she applied his/her own independent mind while according sanction, which is absent in the present case. 23.

Thus, it is apparent that the sanction is not accorded by appropriate authority and also it was accorded without application of mind. Sanctioning Authority PW5 Dr.Wasudeo Taywade has .....15/-

merely put his signature on the sanction order, which was prepared by the Superintendent of the IGMC Hospital. 24.

Thus, there is no application of mind by Sanctioning Authority PW5 Dr.Wasudeo Taywade while according the sanction. 25.

Besides the issue of the sanction, the prosecution has claimed that the accused demanded gratification amount and accepted the same. In order to prove the demand and acceptance, the prosecution mainly placed reliance on evidence of complainant PW2 Sanjay Kale and Shadow Pancha PW3 Ramesh Gawande. The prosecution has also examined PW4 Dr.Prashant Barwe and Civil Surgeon PW6 Dr.Prakash Singh.

26.

It is now well settled that offences, under the said Act relating to public servants taking bribe, require a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing offences under the said Act. .....16/-

27.

The Honourable Apex Court in the case of K.Shanthamma vs. The State of Telangana 4 referring the judgment in the case of P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and anr 5 held that the proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the said Act. The failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offences under Sections 7 and 13 of the said Act would not entail his conviction thereunder. The Honourable Apex Court has reproduced paragraph No.23 of its decision in the case of P.Satyanarayana Murthy supra, which reads thus:

"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification 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. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the 2022 LiveLaw (SC) 192 (2015)10 SCC 152 .....17/-

person accused of the offence under Section 7 or 13 of the Act would not entail his conviction."

28.

To prove the offence under Sections 7 and 13(1)(d) of the said Act, following are ingredients of the said Sections, which require to be prove:

under Section 7: (1) the accused must be a public servant or expecting to be a public servant; (2) he should accept or obtain or agrees to accept or attempts to obtain from any person; (3) for himself or for any other person; (4) any gratification other than legal remuneration, and (5) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.

under Section 13(1)(d): (1) the accused must be a public servant; (2) by corrupt or illegal means, obtains for himself or any other person any valuable thing or pecuniary advantage; or or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing .....18/-

or pecuniary advantage without any public interest; (3) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward; (4) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d); (5) mere acceptable of any valuable thing or pecuniary advantage is not an offence under this provision; (6) to make out an offence under this provision, there has to be actual obtainment, and (7) since the legislature has used two different expressions namely "obtains" or "accepts", the difference between these two have to be taken into consideration.

29.

In the light of the well settled law, if the evidence of the prosecution is appreciated, it would show that complainant PW2 Sanjay Kale applied for apprenticeship in MSRTC, Nagpur. He was given medical forms to show his fitness. Accordingly, he approached the Mayo Hospital, Nagpur for obtaining the said certificate. As per his allegations, while accepting his forms, the .....19/-

accused demanded Rs.100/- from him. His evidence further shows that when he approached the office on 12.10.2000, the demand was made and as he was not having the said amount, he was called on the next day and, therefore, he approached the office of the bureau and the trap was laid. On the next day, he along with the pancha visited the office. At the counter, amount was not demanded, but when his medical examination was carried out, the person on the counter approached him and demanded the amount and he handed over the said amount to the said person. The person who accepted the amount was caught. During his cross examination, it came on record that on the next day, no amount was demanded from him at the counter. It further came on record that on 13.10.2000 he has not met the accused. He has also not enquired about the accused.

He did not complain against the accused. On 13.10.2000, he did not complain against the accused to his superior. It further came in his evidence that he was alone in the chamber of the Civil Surgeon and after examination, he came out of the chamber of the Civil Surgeon.

.....20/-

Thus, if the cross examination is taken into consideration, it would show that the accused has not demanded any amount from him on the day of the trap. Though his chief examination shows that he and Shadow Pancha PW3 Ramesh Gawande went towards the cabin of the Civil Surgeon, when the amount was demanded from him and it was accepted, the pancha was not present along with him.

30.

To corroborate the version of complainant PW2 Sanjay Kale, the prosecution placed reliance on the evidence of Shadow Pancha PW3 Ramesh Gawande, whose evidence is to the extent that he was called on 12.10.2000 along with another pancha Meshram. When they reached the office of the bureau, officer of the bureau asked them to act as panchas and they were called on the next day. On the next day, the complainant was present and produced the tainted notes. The solution of sodium carbonate was applied on the said notes. After the pre-trap panchanama was drawn, they proceeded towards the Mayo Hospital. Initially, they went to the counter near the hospital of the Civil Surgeon. The complainant had given the form on that counter and he was asked .....21/-

to wait. He and the complainant went towards the chamber of the Civil Surgeon and were sitting on a bench. Thereafter, the complainant's name was called and he went inside the chamber of the Civil Surgeon. After coming out of the chamber, the complainant informed him that he had given the amount to the concerned employee and given the signal to the raiding party members. Accordingly, the amount was recovered from the accused. The cross examination of the pancha witness shows that he had no talk personally with the employees of the mayo hospital. The evidence of the pancha shows that there was no demand in his presence even the amount was not accepted in his presence. PW4 Dr.Prashant Barwe is examined by the prosecution to show the presence of the accused and the complainant on the day of the incident. Evidence of PW4 shows on 13.10.2000 he carried out medical examination of candidates referred in mayo hospital. He also examined the complainant on that day.

31.

PW6 Dr.Prakash Singh was Civil Surgeon on the relevant date, whose evidence is to the extent that medical certificates in respect of candidates selected in the Nagpur district were issued by .....22/-

the Civil Surgeon, Nagpur. The accused and the acquitted accused were peons and accused No.1 was assigned the work of clerk and was accepting applications of candidates. Thus, the evidence of both these witnesses shows that on 13.10.2000 accused No.1 was assigned with the work of collecting forms and the accused was assisting him.

32.

PW7 Diwakar Ingole, is the Trap officer, who narrated about various events from lodging of the report till drawing of the post-trap panchanama. As far as the demand is concerned, it was not in his presence. He reached at the spot after receipt of the signal from complainant PW2 Sanjay Kale. Thus, his evidence is not helpful to prove the demand and acceptance. It only shows that the amount is recovered from the accused. His cross examination shows that while recording the complainant's statement and statements of witnesses, place and date of recording of statements were required to be mentioned which he has not mentioned. Thus, nothing fruitful came from his evidence. Except the recovery of the amount from the accused, the evidence of PW7 Diwakar Ingole is not helpful to prove that there was a demand .....23/-

and acceptance. As far as Constable of the ACB PW1 Vilas Khanke PW1 is concerned, he has only carried the complaint of PW7 Diwakar Ingole to register it to the concerned police station and handed over incriminating articles to the Chemical Analyzer. 33.

Thus, after going through the evidence of the material witnesses, especially Shadow Pancha PW3 Ramesh Gawande, who has not stated about the demand and acceptance, his evidence shows that he was not present when the alleged demand was made by the accused and accepted the same. His evidence specifically shows that it was complainant PW2 Sanjay Kale who informed him that he has handed over the amount to the accused. Even, there is no communication between the complainant and Shadow Pancha PW3 Ramesh Gawande that demand was made and, thereafter, the amount was handed over. Even, the evidence of the complainant shows that the accused approached him and asked why he has not paid the amount and he told that the amount was not asked by him at the window and, therefore, he has not paid the amount. After the medical examination, the accused demanded the amount and he has paid the same. However, his .....24/-

cross examination falsifies his earlier version as he admitted during cross examination that on 13.10.2000 personally he did not meet the accused. He did not enquire about the accused. He did not make any complaint against the accused. He further admitted that only persons who are to be examined along with him were permitted to enter into the chamber of the Civil Surgeon. Thus, his evidence also shows that the Shadow Pancha was not present along with him. It further shows that on the day of trap, he did not meet the accused and, therefore, the evidence as to the demand and acceptance is not corroborated by the Shadow Pancha. After appreciating the evidence on record, admittedly, evidence as to the demand is not cogent, reliable and acceptable. 34.

It is well settled that mere possession and recovery of the currency notes from accused without proof of demand is not sufficient to prove charge. The presumption will attract if the prosecution proves foundational facts, which are not proved in the present case. There is no corroboration as far as earlier demand by the accused is concerned. It is well settled that while deciding offence under the said Act, complainant's evidence is to be .....25/-

scrutinized meticulously. There could be no doubt that evidence of complainant should be corroborated in material particulars, which is absent in the present case.

35.

Though learned Additional Public Prosecutor for the State placed reliance on the decision of the Constitution Bench of the Honourable Apex Court in the case of Neeraj Dutta vs. State (Government of NCT of Delhi) supra, it is held in the said decision that in order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. The said requirement is absent in the present case. While deciding issue involving offence under the said Act, a fact is required to be considered is that evidence of complainant will have to be scrutinized meticulously. The testimony of such person requires careful scrutiny.

.....26/-

36.

In the case of M.O.Shamsudhin vs. State of Kerala 6, it has been held that word " accomplice" is not defined in the Evidence Act. It is used in its ordinary sense, which means and signifies a guilty partner or associate in crime. Reading Section 133 and Illustration (b) to Section 114 of the Evidence Act together the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice the rule of prudence so universally followed has to amount to rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused. 37.

In the case of Bhiva Doulu Patil vs. State of Maharashtra 7, it has been held that the combine effect of Sections 133 and 114, illustration (b) may be stated as follows:

"According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."

(1995)3 SCC 351 1963 Mh.L.J. (SC) 273 .....27/-

38.

Thus, in catena of decisions, it is held that complainant himself is in the nature of accomplice and his story prima facie suspects for which corroboration in material particulars is necessary.

39.

When a trap is set for proving charge of corruption against a public servant, evidence about prior demand has its own importance. the reason being that complainant is also considered to be an interested witness or a witness who is very much interested to get his work done from a public servant at any cost and, therefore, whenever a public servant brings to notice of such an interested witness certain official difficulties, person interested in work may do something to tempt the public servant to bye-pass the rules by promising him some benefit. Since the proof of demand is sine qua non for convicting an accused, in such cases the prosecution has to prove charges against accused. Whereas, burden on accused is only to show probability and he is not required to prove facts beyond reasonable doubt. .....28/-

40.

As far as applicability of presumption is concerned, the Honourable Apex Court in the case of Neeraj Dutta vs. State (Govt.of NCT of Delhi) supra held that presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 41.

In the present case, as observed earlier, the prior demand by the accused is not proved by the prosecution. The evidence as to the demand by the accused and its acceptance is not corroborated by Shadow Pancha PW3 Ramesh Gawande. In fact, his evidence shows that at the time of the demand and acceptance, he was not present. It is already observed that principles for according sanction are not taken into consideration. The .....29/-

sanctioning authority has to exercise powers strictly keeping in mind all relevant facts and material and accord the sanction, which is absent in the present case.

42.

In view of the discussion above, as the appeal deserves to be allowed, I pass following order:

ORDER

(1) The criminal appeal is allowed.

(2) The judgment and order of conviction and sentence dated 10.11.2005 passed by learned Judge, Nagpur in Special Case No.15/2001 convicting and sentencing the accused is hereby quashed and set aside.

(3) The accused is acquitted of offences for which he was charged and convicted.

The appeal stands disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

...../-