Criminal Appeal No.250 of 2003,Criminal Appeal No.253 of 2003

20th December, 2006

Petitioner Counsel: Mr. D. L. DHARMADHIKARI
Respondent Counsel: Mr. S. S. DOIFODE

Cases Cited:
Jaswant Singh Vs. State of Punjab, AIR 1973 SC 707 [Para 16]
Pannalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 [Para 16]
Bismillakha s/o. Salarkha Pathan Vs. State of Maharashtra, 2004 ALL MR (Cri) 1341 [Para 16]
M. K. Harshan Vs. State of Kerala, (1996)11 SCC 720 [Para 16]
Suraj Mal Vs. The State (Delhi Administration, AIR 1979 SC 1498 [Para 16]
Nanaji Nivrutti Wagh Vs. State of Maharashtra, 2005 ALL MR (Cri) 1157 [Para 16]
State of Maharashtra Vs. Anant Gurunath Jotrao, 2005 ALL MR (Cri) 1482 [Para 16]
Smt. Meena w/o. Balwant Hemke Vs. State of Maharashtra, 2000 SCC (Cri) 878 [Para 16]
V. D. Jhingan Vs. State of U. P., AIR 1966 SC 1762 [Para 16]
Dnyaneshwar s/o. Laxmanrao Wankhede Vs. State of Maharashtra, 2005 ALL MR (Cri) 2322 [Para 16]
Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra, 2003 ALL MR (Cri) 88=2003(1) Mh.L.J. 131 [Para 16]
Manohar Dhondu Sawant Vs. State of Maharashtra, 2006(2) AIR Bom R 294 [Para 16]
C. T. Muniappan Vs. State of Madras, AIR 1961 SC 175 [Para 16]
Virendranath Vs. State of Maharashtra, (1996)11 SCC 683 [Para 17]
Union of India through Inspector, CBI Vs. Purnandu Biswas, (2005)12 SCC 576 [Para 17]
Ganga Kumar Srivastava Vs. State of Bihar, 2005 ALL MR (Cri) 2540 (S.C.)=(2005)6 SCC 211 [Para 17]
Vishwanath Mahadev Karkhanis Vs. State of Maharashtra, 1991 Mh.L.J. 1040 [Para 17]
T. Shankar Prasad Vs. State of A. P., 2004 Cri.L.J. 884 : (2004)3 SCC 753 [Para 18]
Tarsem Lal Vs. State of Haryana, AIR 1987 SC 806 [Para 18]
State of W.B. Vs. Kailash Chandra Pandey, 2005 ALL MR (Cri) 832 (S.C.)=2005 Cri.L.J. 135 [Para 18]
State of U. P. Vs. Zakaullah, 1998 ALL MR (Cri) 499 (S.C.)=1998 Cri.L.J. 863 [Para 18]
Ram Krishan Vs. State of Delhi, AIR 1956 SC 476 [Para 18]
State of A. P. Vs. K. Punardana Rao, 2004 Cri.L.J. 4191 [Para 18]
V. Radhakrishna Reddy Vs. State of A. P., 2005 ALL MR (Cri) 1027 (S.C.)=2005 Cri.L.J. 1411 [Para 18]
Varada Rama Mohana Rao Vs. State of A. P., 2004 ALL MR (Cri) 2208 (S.C.)=2004 Cri.L.J. 2829 [Para 18]
C. S. Krishnamurthy Vs. State of Karnataka, 2005 ALL MR (Cri) 1315 (S.C.)=2005 Cri.L.J. 2145 [Para 18]
M. Narsinga Rao Vs. State of A. P., 2001 ALL MR (Cri) 565 (S.C.)=2001 Cri.L.J. 515 [Para 18]
Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, 2001 ALL MR (Cri) 188 (S.C.)=2001 Cri.L.J. 175 [Para 18]
State of A. P. Vs. Vasudeva Rao, 2004 ALL MR (Cri) 1191 (S.C.)=2004 Cri.L.J. 620 [Para 18]

JUDGMENT

JUDGMENT :- These two appeals are against the judgment and order passed on 5/3/2003 in Special Case No.1/93 by the Judge of Special Court constituted under the Prevention of Corruption Act, Nagpur, where under the appellant Shankarlal Ramji Bhawarkar (original accused no.1) is convicted under Section 7, 13(1)(d), 13(2) of Prevention of Corruption Act, and sentenced to suffer rigorous imprisonment for 18 months, and fine of Rs.1500/- in default to undergo simple imprisonment for four months, and rigorous imprisonment for 18 months and fine of Rs.1500/- in default to undergo simple imprisonment for four months, and appellant Govinda Ramaji Dhurve (original accused no.2) is convicted under Sections 7, 12, 13(1)(d) and Section 13(2) of Prevention of Corruption Act, and sentenced to suffer rigorous imprisonment for 18 months and fine of Rs.1500/- in default to undergo simple imprisonment for four months, rigorous imprisonment for six months and fine of Rs.500/- in default to undergo simple imprisonment for four months, and rigorous imprisonment for 18 months and fine of Rs.1500/- in default to undergo simple imprisonment for four months. Both these appeals are being decided by this common judgment.

2. The appellant Shankarlal Ramji Bhawarkar (original accused no.1) was Sub-Engineer in M.S.E.B. at Deolapar, while the appellant Govinda Ramaji Dhurve (original accused no.2) was working under appellant Shankarlal as Line Helper. Both the appellants were tried for the charge that during the period from December, 1991 to January, 1992, they were working as Sub-Engineer and Line Helper respectively in M.S.E.B. at Deolapar and as such were public servants within the meaning of Section 2(c) of the Prevention of Corruption Act.

That, Smt. Girijabai Tulsiram Bhal, mother of the complainant Shri Tekchand Tulsiram Bhal (P.W.1) had applied to M.S.E.B. in the month of February or March, 1991, for electric connection in her field and also had deposited an amount for installation as per demand notice issued by M.S.E.B. on 8/10/1991 and on 31/12/1991, when the complainant Tekchand Tulsiram Bhal requested the appellant Shankarlal Ramji Bhawarkar for early electric connection, he demanded from him an amount of Rs.200/- and agreed to accept the same on 7/1/1992 and accepted the same for himself through the appellant-Govinda Ramaji Dhurve as a gratification other than legal remuneration as a motive or reward for showing favour in exercise of their official functions in the matter of giving electric connection and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.

It was further alleged that the appellant Shankarlal, on 7/1/1992 obtained pecuniary advantage i.e. a sum of Rs.200/- for himself from Tekchand through the appellant Govinda by corrupt and illegal means by abusing his position as public servant and thereby committed offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. It is further alleged that accused Govinda, by demanding and accepting from the complainant Tekchand, an amount of Rs.200/- for and on behalf of accused Shankarlal, has aided and abetted the above offence and as such has committed an offence punishable under Sections 7, 12, 13(1)(d), 13(2) of the Prevent of Corruption Act.

3. It is the case of the prosecution that the complainant Tekchand had been to the office of Anti-corruption Bureau, Nagpur, on 7th January, 1992 and he lodged oral complaint with Anti-Corruption Officer-S.P. Shri. Gavai (P.W.8) against the appellant Shankarlal, which was reduced into writing. The contents of the said complaint are that the complainant and his mother Girijabai had 6 acres of agricultural land which is situated within the jurisdiction of Distribution Centre of M.S.E.B. situated at Deolapar and they have installed electric pump on the well in that land. So they are in need of electric connection to run the electric pump set to provide water to the crops standing in the land. They moved an application to the office of M.S.E.B. at Deolapar requesting for electric connection and the office of the M.S.E.B. issued demand note in the year 1991 and after receipt of the demand note, complainant Tekchand made payment of Rs.960/- towards the demand note issued. That amount was deposited in the Bank on 8/10/1991. That receipt was given to appellant Shankarlal along with the copy of the test report. As it happened that the complainant Tekchand repeatedly requested the appellant Shankarlal for giving electric connection, the latter assured that he would provide electric connection within 2-3 days. However, despite that assurance given by him, the electric connection was not provided. Though the complainant Tekchand met the appellant Shankarlal at number of times, this led the complainant to make an application requesting for providing electric connection. So also making a grievance that in spite of depositing the amount as per the demand note, the electric connection was not provided. It was also said by the complainant that already pole was installed in his field near the well and electric line upto the pole was also laid.

4. On 31/12/1991, complainant Tekchand went to Deolapar and met the appellant Shankarlal and requested him to provide electric connection. He told the appellant that his mother had accompanied him so that her signature on the agreement paper be taken. But, the appellant Shankarlal told that the requisite forms were not available and he had already sent one person to Ramtek to bring that proforma and asked them to wait till that person comes back. The complainant and his mother, that day, waited upto 4 p.m. When the complainant and his mother started leaving the office, that time the appellant Shankarlal i.e. accused no.1 called them and demanded a sum of Rs.200/- so that he would provide electric connection. To that, the complainant told that he had no money. There was conversation between the complainant Tekchand and the appellant- Shankarlal. According to the complainant, he told that the amount demanded was exorbitant. The appellant then reiterated saying that if he had no money, his work could not be done. He also told the complainant that if he gets electric connection, he would be benefited, but what about him.

5. The complainant requested to reduce that amount of demand, but the appellant told that it was not possible to reduce the amount as it is not exorbitant. He also told him that if he had no money that day with him, he should come on the next Tuesday. So the complainant and his mother having agreed to pay the amount returned home. But, the complainant was not willing to pay any amount by way of gratification to the appellant-Shankarlal and, therefore, he went to the office of A.C.B. on 7th January, 1992 and lodged complaint vide Exh.19.

6. Two persons namely Gulab Kathawate (P.W.2) and Suresh Somkuwar who were employees of Collector Office, Nagpur, were called to act as panchas and they were apprised of procedural work connected with trap, so also the introduction of the complainant, Dy. S. P. Gavai and members of raiding party was done. Both the panchas were apprised of the complaint lodged by the complainant by reading over the said complaint Exh.19. Police Head Constable Sangitrao prepared solution of Sodium Carbonate by adding Sodium Carbonate powder in plain water. The use of Sodium Carbonate solution and Phenolphthalein powder in the trap was explained to all of them. Then all the members of the raiding party including panch witnesses and complainant, one after another, dipped their fingers of both the hands in that solution. The colour of solution remained as it was, meaning thereby, the solution did not turn purple. That solution was then thrown and destroyed. Again fresh solution was prepared and Police Head Constable Sangitrao gave actual demonstration as to what happens if Phenolphthalein powder comes in contact with Sodium Carbonate. Then that powder was added in the solution. The colour of the solution changed becoming purple. Again that purple colour solution was thrown and destroyed. Head Constable Sangitrao washed his hands with plain water and then by Sodium Carbonate solution. The complainant was then asked to produce the bribe amount. He produced two currency notes each of Rs.100/- denomination. The numbers of those currency notes were noted and then Police Head Constable Sangitrao applied the Phenolphthalein powder on both sides of the two currency notes with the help of a brush. The personal search of the complainant was taken and it was found that he was having one receipt of payment of Rs.960/-, so also an amount of Rs.18.50/-. The list of the articles found with the complainant was prepared. The complainant was asked to keep those articles in the pocket of his pant. Then these tainted currency notes were kept in the left side chest pocket of the shirt of the complainant by the Head Constable Sangitrao. He also explained the role of each of the panch witnesses and then closed the bottle of Phenolphthalein solution, sealed it and kept that bottle in the cupboard. The complainant Tekchand was given instructions not to touch to the tainted currency notes which were kept in the pocket of the shirt till the time demand was made by appellant Shankarlal. The panch witness Gulab was instructed to hear the conversation between the complainant Tekchand and appellant Shankarlal, regarding the demand of the amount by Shankarlal from the complainant. At the same time, panch no.2 Suresh was instructed to remain in the company of the trap party and to rush to the spot along with the trap party after signal is given by the complainant. The panch witness Gulab (P.W.2) was directed to work as panch no.1 i.e. for pre-trap panchanama, while panch Suresh was directed to work as panch no.2. Before leaving for the trap, fresh solution of Sodium Carbonate was prepared and all the members of the raiding party, panch witnesses, complainant tested fingers of their both hands by dipping their fingers in the solution one after another. That gave negative result in the sense the colour of the solution did not turn purple as Phenolphthalein powder was not added in the solution, nor it was on the fingers of all of them. After recording of Panchanama No.1, all the members of the trap party excepting Police Head Constable Sangitrao proceeded by jeep by Nagpur-Mansar Road and they reached near village Deolapar. When village Deolapar was at a distance of half kilometer, the vehicle was stopped and again instructions were given by Dy. S. P. Gavai to complainant Tekchand and panch Gulab and the complainant was instructed not to touch the tainted notes till the time there was demand from the accused Shankarlal. Then from that spot panch Gulab and the complainant Tekchand proceeded towards the office of M.S.E.B. and they were followed by panch no.2- Suresh. Panch Gulab and the complainant Tekchand reached the office of Shankarlal at about 15.20 hours. After a gap of 5 minutes, complainant Tekchand and panch Gulab came out of the office and they were standing near the office of appellant Shankarlal in the open space for about 5 minutes. But then at about 15.30 hours, again the complainant and panch Gulab entered the office of the appellant and after about 5 minutes, the complainant Tekchand, panch Gulab and appellant Shankarlal and 3 to 4 other persons came out of that office and all of them proceeded towards the main road. They stopped near one room that was abutting the main road. It was the room in which appellant Shankarlal was residing. The appellant Shankarlal opened the lock of that room and then entered in the room with complainant Tekchand, and panch Gulab. That time one person was standing near the front door of that room. After a gap of 10 minutes, complainant Tekchand and panch Gulab came out of the room and then complainant gave agreed signal. As soon as signal was given by the complainant, the trap party with panch no.2 Suresh rushed to the spot. Appellant Govinda Dhurve who was the person standing out side the room, was caught. He shouted saying, "What I have done, what I have done?" Panch Gulab and the complainant Tekchand stated that the accused Shankarlal demanded money and told them to give bribe amount to accused Govinda and accordingly tainted currency notes were given to the appellant Govinda who accepted that amount and kept the same in the chest pocket of his shirt. Thereafter further procedural work was done. In that, as instructed by Dy. S. P. Gavai, Police Constable Sadashiv Pande prepared fresh solution and all the members of raiding party, both the panchas except the complainant tested their fingers of their hands by dipping their fingers in the solution. The colour of the solution remained as it was. Fresh solution was then prepared in which the hand wash of right hand and left hand of appellant Govinda Dhurve was collected separately. It is the case of the prosecution that it gave positive result of presence of Phenolphthalein powder as the solution turned purple since the appellant Govinda dipped his fingers of right hand and left hand separately in the solution, the hand wash of both the hands of appellant Govinda was collected separately in two empty tested glass bottles. Those glass bottles were closed and sealed and paper labels with signatures of panchas, accused and that of witness Gavai was fixed to those bottles.

7. Panch no.2-Suresh was directed to have personal search of appellant Govinda. In his personal search, in the chest pocket of his shirt, folded tainted currency notes were found. Those currency notes were having same numbers which were mentioned in the Panchanama No.1. Besides those two currency notes each of Rs.100/- denomination, one other currency note of denomination of Rs.100/- and one blank printed proforma of the application was found. A list was prepared of rest of the articles found in other pocket of appellant Govinda.

8. Fresh solution of Sodium Carbonate was prepared and it was sprinkled on those three currency notes and the blank proforma of application which was found in the chest pocket of the shirt of the appellant. The two currency notes gave positive test to the solution of Phenolphthalein powder as purple colour dots appeared on those currency notes. The third currency note that was found in the pocket of the shirt of the appellant Govinda so also the printed proforma were kept in another envelope. Both these envelopes were closed and sealed.

9. Fresh solution was prepared by Police Constable Sadashiv Pande and it was sprinkled on the chest pocket of shirt of appellant Govinda. Purple colour dots appeared and so the shirt of the appellant Govinda was seized and closed and sealed. Thereafter, personal search of appellant Shankarlal was made and in his possession, amount of Rs.1559/-, so also some keys, two pens, tickets for bus travel, some receipts, letters were found. List of these articles was prepared and those articles were returned to appellant Shankarlal. Police Constable Sadashiv Pande then prepared fresh solution of Sodium Carbonate and the hand wash of right hand of the complainant was obtained. Complainant Tekchand was asked to dip his fingers of right hand in that solution. As soon as he dipped his fingers in the solution, the colour changed and it became purple. That hand wash was collected in a tested empty glass bottle. That bottle was sealed and labeled with signatures of both the panchas and that of the complainant. Then fresh solution was prepared and it was sprinkled on the chest pocket of the complainant, on which purple colour dots appeared. So it gave positive test about the presence of Phenolphthalein powder. The personal search of the complainant was made. In his personal search, articles mentioned in panchanama no.1 were found, consisting of one receipt of payment of amount of Rs.960/- as per demand note, that receipt was seized. Rest of the articles were returned to the complainant after preparing the list of the same.

10. The appellant Shankarlal was then brought to his office. He produced application of Girijabai, work order, carbon copy of Demand Notice, complaint made by Girijabai, Auxiliary Register, Dispatch Register and F-1 Register, which were seized. Seizure Memo was prepared and the copy of the same was given to the appellant Shankarlal. Hand wash of panch no.2 was obtained. Solution turned purple so it gave positive result of Phenolphthalein powder. That hand wash was thrown and destroyed. Then panch Gulab narrated all the events which occurred since they entered the office of M.S.E.B. at Deolapar upto the events signal was given and the trap party arrived along with panch no.2 Suresh on the spot. Panch no.1 Gulab narrated all those events to panch no.2 - Suresh in presence of trap party, accused and the complainant. Deputy Superintendent of Police Shri. Gavai then prepared one sketch showing the scene of offence wherein the position of each of the person who was on the spot when they caught appellant Govinda was located. A separate panchanama titled as "Panchanama No.2" was made. Then Dy. S. P. Gavai drafted complaint against both the accused and handed over that complaint to Police Constable Sadashiv Pande so as to tender the same to Police Station Officer of Police Station, Deolapar along with his covering letter. On the basis of the said complaint, the Police Station Officer registered crime vide Cr. No.1/92 under Sections 7, 12, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988. Dy. S. P. Gavai then carried further investigation. In that he forwarded the muddemal property to Chemical Analyser along with his covering letter and also moved an application for sanction to Competent Authority, forwarding all the papers of investigation to the sanctioning authority. Prakash Madhaorao Kothare (P.W.5) the then Joint Secretary, Technical, M.S.E.B. accorded sanction and forwarded the same to the Superintendent of Anti Corruption Bureau. In the mean time, Chemical Analyser submitted his report Exh.75. After receipt of the sanctioning order, charge-sheet was filed against both the appellants.

11. When the matter was before the Special Judge, charge was framed vide Exh.1 which was read over and explained to both the appellants, who pleaded not guilty to the charge and claimed to be tried. Their defence was many-folds. One was that of total denial, while the second was that on the relevant day of trap, appellant Shankarlal, while he was in his office, was making payment of amount of arrears of D.A. to Linemen attached to Deolapar Distribution Centre. He made payment of arrears of D.A. to accused no.2-Govinda. That time, it was found that the amount that was paid to appellant Govinda was short by Rs.200/-. So the appellant Shankarlal directed the appellant Govinda to come to his room to collect the said amount of Rs.200/-. He, therefore, stated that as he was short of amount of Rs.200/-, he asked appellant Govinda to come to his room to get that amount. It was also the defence of appellant Shankarlal that he had caught the complainant Tekchand red-handed while committing theft of electricity. It was the contention of the appellant Shankarlal that the complainant Tekchand had connected electric wires for pump set to electric pole and thereby he illegally availed electric energy and thus committed theft of the same. He, therefore, scolded Tekchand on 6th January, 1992 i.e. a day prior to the trap. So it was the cause why Tekchand lodged false complaint against him. So far as the accused no.2-Govinda is concerned, his defence is of total denial. However, finding of tainted currency notes in the pocket of his shirt is not denied. But it is his contention that the amount has been thrusted in his pocket by the complainant. His contention is that he was not aware nor was he informed by the appellant Shankarlal that he was demanding amount as bribe from the complainant and asked the complainant to give that amount to him for appellant Shankarlal. It may be noted at this juncture that it is the case of the prosecution that appellant Shankarlal either directly told the appellant Govinda to receive the amount from the complainant for him or it was made known to him that the amount which the complainant was going to pay to him, was the amount of bribe.

12. At the trial, the prosecution has examined in all eight witnesses including the complainant Tekchand (P.W.1), panch witness Gulab (P.W.2), Subhash Kale (P.W.3), Assistant Engineer, M.S.E.B., on the point of procedure to provide electric connection, Police Constable Sadashiv Pande (P.W.4), Prakash Kothare (P.W.5), Sanctioning Authority, Deorao Parate (P.W.6) Line Helper of M.S.E.B., Girijabai (P.W.7) and Dy. S. P. Purushottam Gavai (P.W.8), who carried out investigation in the matter. The appellants were examined under Section 313 Cr.P.C. after the evidence was recorded. Then appellant Shankarlal examined himself on oath as D.W.1 and also examined one Agnidevsingh Ramrupasimha Manjilwar (D.W.2) and Radhesham (D.W.3) as witness in support of his defence. The trial Court, on appreciation of evidence oral as well as documentary, and accepting the evidence of panch witness Gulab, complainant Dy. S. P. Gavai and rejecting the defence of the accused, recorded the finding that the appellant Shankarlal had demanded the amount from the complainant as bribe and it was on his instructions that the said amount of Rs.200/- was received by appellant Govinda. The trial Court also found that the sanction accorded by the Sanctioning Authority i.e. Joint Secretary, Technical Prakash Kothare (P.W.5) was legal and valid and that the prosecution has established its case beyond reasonable doubt. So in keeping with the findings recorded, the trial Court convicted and sentenced both the appellants by the impugned judgment and order. Hence this appeal.

13. It is the prosecution case that on 31/12/1991, when the complainant Tekchand met the appellant Shankarlal in his office, he enquired with him as to when he was doing the work of giving electric connection. That time, the appellant Shankarlal, besides telling the complainant about the completion of formalities including the execution of agreement asked him to pay amount of Rs.200/- and when the complainant expressed his inability to pay the amount that day, the appellant Shankarlal told him to see him on next Tuesday i.e. 7/1/1992, bringing with him the amount asked for. Then as per the prosecution case, the complainant met Dy. S. P. Gavai (P.W.8) and narrated about the alleged demand by the appellant Shankarlal and after having recorded his complaint, it was decided to lay trap on 7/1/1992. Accordingly, on 7/1/1992, after the other formalities were completed including calling two panchas for the trap, amongst them one was witness Gulab (P.W.2), and drawing Panchanama No.1 Exh.29, the police party headed by Dy. S. P. Shri. Gavai (P.W.8), went to the office of the appellant Shankarlal. Complainant Tekchand (P.W.1) and panch Gulab (P.W.2) initially, when entered in the office of appellant-Shankarlal, and after having some talk with them, asked them to wait outside. It is a matter of record that there were other persons in the office of the appellant-Shankarlal and that time, appellant Shankarlal was busy in making payment of arrears of D.A. to the Linemen. Complainant Tekchand and Panch Gulab, after having waited for about 2-3 hours, again entered the office of appellant Shankarlal and that time, appellant Shankarlal asked them to follow him to his room where he was residing. The appellant then closed the office and went to his room and after opening the lock, entered his room and complainant and panch Gulab, after some time, again entered the room and then after some conversation between them, it is the case of prosecution that, appellant Shankarlal, after having ascertained that the complainant has brought the amount, told him that the amount should be paid to the Lineman who was standing just near the door of the room. Then the complainant and panch Gulab came out of the room and as per the prosecution case, the complainant gave the amount to appellant Govinda, consisting of two currency notes of Rs.100/- denomination. It is claimed by the prosecution that the appellant Govinda put the amount in the chest pocket of his shirt and at that time itself, the trap party apprehended the appellant Govinda and that is how the tainted currency notes were taken out by the appellant Govinda from his pocket and the same were seized. In the earlier part of the judgment, while narrating the prosecution case, I have already stated about the necessary formalities including lodging of report, registration of the offence and then during the course of investigation, after witness Prakash Kothare (P.W.5) who was then Joint Secretary Technical with M.S.E.B., accorded the sanction vide exh.60, charge-sheet came to be filed.

14. The prosecution examined in all eight witnesses. The main evidence on the point of demand and acceptance of amount, consists of testimony of complainant Tekchand (P.W.1) and panch witness Gulab (P.W.2). The learned counsel for the appellant strenuously contended that the evidence of these two witnesses and the circumstances found by the trial Court in their totality, do not establish that the appellant Shankarlal demanded the amount and appellant Govinda accepted Rs.200/- as bribe amount. It is their common ground that the evidence on record on the point of demand and acceptance of amount is inconsistent and that the version of the complainant is not at all corroborated in material particulars. So, according to the learned counsel for the appellants, the trial Court has committed an error in accepting the evidence of the complainant and witness Gulab, and also discarding the defence version which is corroborated by the evidence of the appellant Shankarlal who examined himself in his defence and witness Agnidevsingh (D.W.2) and Radhyesham (D.W.3) as witnesses in defence. It is further submitted that it is a matter of record that on 7/1/1992, appellant Shankarlal was distributing the amount of arrears of D.A. in his office to Linemen. Appellant Govinda who was then working under the appellant Shankarlal, as Lineman, was also to receive arrears of D.A. from appellant Shankarlal. It was in that context that appellant Govinda had been called by the appellant Shankarlal to receive the amount. It is vehemently submitted that the complainant and panch witness Gulab (P.W.2) sensing that appellant Govinda, on that day, was to receive amount from appellant Shankarlal towards D.A. arrears, as soon as they came out of the room of the appellant Shankarlal, thrusted the amount of Rs.200/- in the pocket of appellant Govinda and it was at that time, the trap party headed by Dy. S. P. Gavai (P.W.8), apprehended him. It was the case of the prosecution that the appellant Shankarlal told the complainant Tekchand when he entered his room along with witness Gulab (P.W.2) to give amount to appellant Govinda. It is the contention of the defence and more particularly of appellant Govinda that he was not at all aware, on that day, till the amount was put in his pocket, that it was an amount of bribe. He was not aware that appellant Shankarlal told the complainant Tekchand to give the amount to appellant Govinda. So, it is vehemently contended that even if the amount i.e. two tainted currency notes were found in the pocket of appellant Govinda, it cannot be said that appellant Govinda has accepted the amount as bribe amount.

15. The learned counsel for the appellants submitted that the sanction accorded for prosecution by witness Prakash Kothare (P.W.5) is not valid and legal as there is total non-application of mind. It is also pointed out by the learned counsel for the defence that it was not within the competence of appellant Shankarlal to release electric connection that was sought for by the complainant. In that connection, counsel for the defence placed reliance on the evidence of witness Subhash Kolhe (P.W.3) who was then working as Assistant Engineer with M.S.E.B. posted at Ramtek. In his evidence, he stated that there are six Distribution Centres within Ramtek Range i.e. Sub Division. Out of six Distribution Centres, three are at Ramtek, one at Deulapar, one at Mansar and one at Aroli. Admittedly, appellant Shankarlal was working as Sub-Engineer attached to Distribution Centre, Deulapar, in the year 1991. From his evidence, it was pointed out that in his capacity as Sub-Engineer, it was for the appellant Shankarlal to process the application which is submitted for release of electric connection. But ultimately, the order for releasing electric connection is to be passed by the Assistant Engineer, Ramtek. He has also stated in his evidence that before giving such connection, new consumer has to enter into an agreement with M.S.E.B. at Ramtek Sub-Division. After that agreement is executed, then the Board used to release the connection. This witness also stated in his evidence that the application of Girijabai (P.W.7) who is the mother of complainant Tekchand (P.W.1), was received by Sub-Divisional Officer at Ramtek and that when the A.C.B. officials had been to Ramtek Sub Division, on that day, application of Girijabai, the documents submitted by Girijabai, Test Report in respect of that application, they were with Ramtek Sub-Divisional Officer. He also stated that Ramtek Sub-Division had not given any intimation to release that connection to Girijabai. This witness categorically admitted that Sub-Engineer Bhawarkar i.e. the appellant Shankarlal was not empowered to sanction the electric connection. It is, therefore, submitted by the learned counsel that no offence has been committed by appellant Shankarlal. It is further submitted that having regard to the circumstances brought on record and more particularly, the fact that the appellant Govinda, that day, was to receive the amount towards arrears of D.A. from the appellant Shankarlal and when the appellant Govinda had no knowledge that the amount that was given by the complainant at the behest of the appellant Shankarlal was the bribe amount, even if it is said that the appellant Govinda had accepted the amount, no offence is committed.

16. Mr. Mardikar, the learned Advocate appearing for appellant Shankarlal, submitted that so far as testimony of complainant and panch witness Gulab is concerned, there is inconsistency on all points. In the first place, he submitted that the statements of complainant and Panch Gulab are contradictory on the point of demand on 7/1/1992, as Panch Gulab has not uttered a single word about the demand of Rs.200/- by appellant Shankarlal. According to the learned counsel, this inconsistency is very material in the sense, as claimed by this witness Gulab, all the while, right from beginning, he remained with complainant Tekchand till both of them came out of the office of the appellant Shankarlal. The complainant Tekchand in his evidence, has stated about demand of Rs.200/- by appellant Shankarlal being made repeatedly. It is in this background that not even an utterance of a word by witness Gulab regarding demand of amount of Rs.200/-, makes the matter suspicious and that affects the credibility of the version of the complainant Tekchand. In this context, Mr. Mardikar, Advocate appearing for the appellant Shankarlal, placed reliance on the decision of the Apex Court reported in AIR 1973 Supreme Court 707 (Jaswant Singh Vs. State of Punjab), wherein it is held that in a bribery case, the complainant is an interested witness and his evidence must be considered with great caution and it can be accepted when it is corroborated in material particulars by other evidence adduced by the prosecution.

To support his submissions, he also placed reliance on the decision of the Apex Court reported in AIR 1979 SC 1191 (Pannalal Damodar Rathi Vs. State of Maharashtra), wherein while dealing with the evidence of complainant in a case for offence under the Prevention of Corruption Act, the Apex Court has said that the complainant is not in better position than accomplice after introduction of Section 165-A of the Act and, therefore, corroboration in material particulars to his evidence is necessary. In that case, it is found that there was no corroboration to the testimony of the complainant regarding demand for money by the accused therein and, therefore, the evidence of the complainant on that aspect, could not be accepted.

Mr. Mardikar placed reliance on the decision of this Court reported in 2004 ALL MR (Cri) 1341 (Bismillakha s/o. Salarkha Pathan Vs. State of Maharashtra) wherein on appreciation of evidence of complainant at whose behest the trap was laid, it was held that sole uncorroborated testimony of prosecution witness as to demand allegedly made by the accused, cannot be relied upon. In that case, as regards the presumption to be drawn under Section 20 of the Act, it is held that it should be proved during the trial that the accused has accepted or agreed to accept as gratification (other than legal remuneration) any valuable thing from any person.

In the decision of the Apex Court reported in (1996)11 SCC 720 (M. K. Harshan Vs. State of Kerala), as regards the evidence of trap witness, it was found that it was contradictory on the point of demand and acceptance of amount vis-a-vis evidence of other prosecution witnesses. The Apex Court held that in the absence of other clinching and corroborative evidence to support the version of trap witness, the accused is entitled to benefit of doubt. What was stated with emphasis in this case is that a trap witness is in no better place than an accomplice unless there is corroboration on material particulars to his evidence and further when there is no evidence to show that the accused has obtained illegal gratification, demand of the amount by itself is not sufficient to establish the offence.

Mr. Mardikar placed reliance on the decision of the Apex Court reported in AIR 1979 SC 1498 [Suraj Mal Vs. The State (Delhi Administration)], in which it was held that when two inconsistent statements are made by witnesses at one or two stages, their evidence becomes unreliable and unworthy of credit and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. In that case, it was also held that mere recovery of money from the accused is not sufficient.

In 2005 ALL MR (Cri) 1157 (Nanaji Nivrutti Wagh Vs. State of Maharashtra), this Court has, placing reliance on the decision of the Apex Court in AIR 1979 SC 1191 (supra), held that acceptance of illegal gratification has to be proved on evidence. For that, corroboration in material particulars to the testimony of complainant has to be insisted upon.

Mr. Mardikar placed reliance on the decision of this Court reported in 2005 ALL MR (Cri) 1482 (State of Maharashtra Vs. Anant Gurunath Jotrao) in which it is held that when there are three different versions regarding recovery of currency notes from the accused, there is serious lacuna in the prosecution case and as such recovery of money from the accused becomes doubtful and accused is entitled to get benefit of doubt. In that case, the independent witness who had seen recovery of amount from the accused, was not examined. Mr. Mardikar placed reliance on these decisions on the ground that the prosecution has not examined independent panch witness Suresh who acted as Panch No.2 for Panchanama No.1 Exh.29 and Panchanama no.2 Exh.41.

Mr. Mardikar placed reliance on the decision of the Apex Court reported in 2000 Supreme Court Cases (Cri) 878 (Smt. Meena w/o. Balwant Hemke Vs. State of Maharashtra), wherein it is held that when corroboration of trap evidence wanting, mere recovery of currency notes and positive result of phenolphthalein test is not enough in the peculiar circumstances of the case to establish guilt of the accused on the basis of perfunctory nature of materials and prevaricating type of evidence.

Mr. Mardikar, the learned Advocate, placed reliance on the decision of the Apex Court reported in AIR 1966 SC 1762 (V. D. Jhingan Vs. State of Uttar Pradesh), wherein as regards the presumption under Section 4(1) of the Prevention of Corruption Act, 1947, it is held that to raise the presumption, the prosecution has to prove that the accused has received "gratification other than legal remuneration". When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. Then mere receipt of money is sufficient to raise presumption. In that context, it is also observed by the Apex Court that when the presumption is raised, the onus lies on the accused to rebut the presumption and that burden of proof which lies on the accused will be discharged if he establishes his case by preponderance of probabilities as is done by party in civil proceedings. It is not necessary that he should establish his case by test of proof beyond a reasonable doubt.

A reference is also made to the decision of this Court reported in 2005 ALL MR (Cri) 2322 (Dnyaneshwar s/o. Laxmanrao Wankhede Vs. State of Maharashtra), wherein it is observed that defence evidence is not to be assessed with the same yardstick as applied to the evidence of prosecution as accused is not required to prove his defence beyond reasonable doubt, but only by preponderance of probabilities. Reliance is also placed on the decision of this Court in 2003(1) Mh.L.J. 131 : [2003 ALL MR (Cri) 88] (Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra), in which case the material evidence relating to first and second demand had not been brought forward by the prosecution. The defence version was that the amount was required to be paid to a contractor for erection of poles for reaching electric supply to complainant's well, was probable in view of disclosure to that effect made by the appellant in trap itself and also brought out in cross-examination of shadow witness which was present at the stage of trap. So the Court held that since the evidence relating to demand was shaken insofar as the evidence relating to acceptance was concerned, it would safer to take a view that defence has been able to establish that presumption under Section 20 could be said to be rebutted in view of the infirmities in prosecution evidence which were consistent with the defence version.

In the decision of this Court reported in 2006(2) AIR Bom R 294 (Manohar Dhondu Sawant Vs. State of Maharashtra & Anr.), the case being for offence under the Prevention of Corruption Act and on the point that whether acceptance of money amounts to illegal gratification, this Court observed that mere acceptance of money by the accused is not sufficient. Demand and acceptance of bribe is to be established. It had established by the prosecution that the accused had demanded bribe for the purpose of doing or committing to do something in discharge of the official duty. It is well settled position in law that it is not sufficient to establish acceptance of money by the accused since money can be accepted for any number of reasons and, therefore, the demand and acceptance of bribe is an essential ingredients of offence punishable under Section 161 of I.P.C. and Section 5(1)(d) of the Prevention of Corruption Act.

Mr. Mardikar has referred to the decision of the Apex Court in AIR 1961 Supreme Court 175 (C. T. Muniappan Vs. The State of Madras). In that case, it is held that an accused is entitled in law to further question to prosecution witness by way of cross-examination in respect of what he had stated in reply to question put to him in cross-examination by other co-accused. Each accused is entitled in law to adduce evidence given against him by the prosecution witness by the cross-examination and such cross-examination need not be limited only to what has been stated by him in examination-in-chief. Though Section 137 and Section 138 do not in words speak of a further round of cross-examination, there is neither in these sections nor anywhere else in the Evidence Act anything to bar the accused from exercising his right of cross-examination afresh if and when the prosecution witness makes a further statement of facts prejudicial to him.

17. Shri. Dharmadhikari, the learned Advocate appearing for the appellant Govinda, placed reliance on the decision of the Apex Court reported in (1996)11 Supreme Court Cases 683 (Virendranath Vs. State of Maharashtra), in which case, for bribe amount, demand was made by accused no.1 therein and the amount was accepted by the accused no.2. It was found that the acceptance of the amount by the accused no.2 was on behalf of the accused no.1 and, therefore, the accused no.1 was convicted, but as regards the accused no.2, it was found that he could have received money innocently without realising that it was bribe money because the prosecution had not led any other evidence from which it could be spelled out that accused no.2 was habitual go-between in facilitating acceptance of bribe by accused no.1. Therefore, the accused no.2 therein was acquitted. It was the submission of Mr. Dharmadhikari, the learned Advocate for the appellant Govinda, that even if it is accepted that the appellant Govinda accepted the amount, there is no evidence to show that he was aware that the amount which was given to him was bribe money. It is in that context, this decision of the Apex Court is relied upon by the learned counsel.

Shri. Dharmadhikari also placed reliance on the decision of the Apex Court reported in (2005)12 Supreme Court Cases 576 (Union of India through Inspector, CBI. Vs. Purnandu Biswas), in which case, on appreciation of evidence it was found that the evidence on record was not consistent and there were doubts and improbabilities in the prosecution versions as to the trap. So the Apex Court acquitted the accused persons. The learned Advocate, in his submissions, pointed out contradictory versions and glaring inconsistency inter se in the versions of complainant Tekchand and panch witness Gulab.

Shri. Dharmadhikari also placed reliance on the decision of the Apex Court reported in (2005)6 Supreme Court Cases 211 : [2005 ALL MR (Cri) 2540 (S.C.)] (Ganga Kumar Srivastava Vs. State of Bihar), in which case, there was concurrent findings of fact. The question that fell for consideration was whether interference was justified. It was held that though the powers under Article 136 are very wide, in criminal appeals, Supreme Court does not interfere with the concurrent findings of fact save in exceptional circumstances. It can interfere when question of law of general public importance arises or a decision shocks the conscious of the Court. It has been further observed that the powers can be invoked where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, error of record and misreading of evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. The interference is also permissible when the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is heavily unsafe to act upon it. The learned Advocate pointed out that the evidence adduced by the prosecution, mainly of complainant Tekchand and Panch witness Gulab, consists of improbabilities, inconsistency and is contradictory with each other and is even self contradictory. It is to be said that the evidence falls short of test of reliability and acceptability and as such it is highly unsafe to act upon it.

Mr. Dharmadhikari placed reliance on the decision reported in 1991 Mh.L.J. 1040 (Vishwanath Mahadev Karkhanis Vs. State of Maharashtra), in which case, there was a prosecution under the Prevention of Corruption Act. On the point of validity of sanction order, it was found that the sanction order was void ab initio. It is observed that reading of sanction order undisputedly indicated that the authorities granting the sanction had not applied their minds to the facts of the case. In fact, the trial Court found the sanction order irregular, but he expressed that defect may not go to the root of the matter and was curable. The order of the trial Court was set aside as the sanction order was itself void ab initio.

18. I have heard Mr. S. S. Doifode, the learned A.P.P. for the respondent-State. In the first place, he controverted the submissions of the learned counsel for the appellants/accused persons. He submitted with emphasis that by the evidence on record, it is established that tainted currency notes were found in the chest pocket of shirt of the appellant Govinda and it is brought in the evidence of complainant Tekchand and panch witness Gulab that it was appellant Shankarlal who had demanded the amount as consideration for doing the work and that it was the appellant Shankarlal who told the complainant to give the amount to appellant Govinda. He submitted that inconsistency in the evidence of these two witnesses is not at all sufficient and grave so as to dis-credit the testimonies of these witnesses. Their evidence is corroborated by recitals in panchanama.

As regards the validity of the sanction order, the prosecution has placed the order Exh.60 and also examined witness Prakash Kothare (P.W.5) who accorded the sanction. In his evidence, he has elaborately stated as to how he scrutinized the material to reach to the conclusion that the sanction to be granted for prosecution. He, therefore, submitted that in the challenge to the sanction order by the defendant, there is no substance at all and the trial Court has rightly rejected the defence. So far as the defence of the accused Govinda is concerned, it is self contradictory with the evidence of complainant, and his mother had executed the agreement and all formalities have been complied with and, therefore, the avoidance on the part of the appellant Shankarlal in releasing the order to get electric connection, was obviously with an intention to gain amount from the complainant as bribe. He further stated that the inconsistency in the evidence of witness as to the place where appellant Shankarlal made a demand and also the place where actually the amount was given by the complainant to appellant Govinda and accepted by him, is not at all accordingly relevant. The presence of appellant Govinda in the office along with appellant Shankarlal so also in his residential room, is not disputed and their presence has been established clinchingly by evidence on record. So, the trial Court has appreciated the evidence in the correct perspective and as such the appellants have been rightly convicted. In support of his submissions, he had placed reliance on the decision reported in 2004 Criminal Law Journal 884 (T. Shankar Prasad Vs. State of Andhra Pradesh), wherein it is held that when involvement of accused is established by the prosecution witness, presumption can be raised under Section 20 of the Prevention of Corruption Act, that the accused person accepted the illegal gratification and, therefore, the contention of defence that amount accepted by the appellant Govinda was not bribe amount, cannot be accepted. In this case, it is also observed that the presumption that is available under Section 20 of the Prevention of Corruption Act casts an obligation on the Court to operate it in every case brought before it. But it is rebutted by proof and not by assumption which may seem to be plausible. Unless the presumption is disproved or dispelled or rebutted, the Court can treat presumption as tantamounting to proof.

Shri. Doifode also placed reliance on the decision of the Apex Court reported in AIR 1987 Supreme Court 806 (Tarsem Lal Vs. State of Haryana). In that case, the money was recovered from the person of the accused. There was no explanation given by accused at the time of search and recovery. So the explanation given at the trial that he received money for depositing it in small savings scheme found to be an after-thought. A reliance has been placed on the decision by the learned A.P.P. as it was one of the defence of the appellant Govinda that he had received amount of arrears of D.A. from the appellant Shankarlal who was, admittedly, on that day, distributing the amount of arrears of D.A. to Linemen. When it is found that the amount which was recovered from the pocket of the appellant Govinda, was consisting of two currency notes in 100 rupee nomination, this defence was found to be an afterthought as it is not stated by the accused at the time when he was apprehended. It is found to be an afterthought as there was no evidence to show that the amount of arrears of D.A. which appellant Govinda was to receive, fell short of Rs.200/-. It is submitted with emphasis that how it could be a co-incidence that the amount which fall short in payment of arrears of D.A. was exactly Rs.200/- when the prosecution case was that the demand by the appellant Shankarlal was for an amount of Rs.200/-.

Shri. Doifode also placed reliance on the decision of the Apex Court reported in 2005 Criminal Law Journal 135 : [2005 ALL MR (Cri) 832 (S.C.)] (State of West Bangal Vs. Kailash Chandra Pandey), wherein currency notes of noted numbers seized from the pant of the accused and phenolphthalein test of accused's hand and pant was positive, so acquittal on the ground that accused's signature was not taken on seizure list or that currency notes were not sent to forensic laboratory for chemical examination or that money was kept by accused in left pocket but hand wash was taken of right hand or that amount covered by impugned bills of complainant contractor had already been released was not proper.

Mr. Doifode placed reliance on the decision of the Apex Court reported in 1998 Criminal Law Journal 863 : [1998 ALL MR (Cri) 499 (S.C.)] (State of U. P. Vs. Zakaullah), in which it is held that in a case when the accused is caught red-handed with tainted currency note, non-sending of sample of solution used for conducting Phenolphthalein Test to Chemical Analyser, would not vitiate the trap.

Shri. Doifode also relied on the decision of the Apex Court reported in AIR 1956 Supreme Court 476 (Ram Krishan and another Vs. State of Delhi), wherein it is observed that the word "obtains" in Section 5(1)(d) of the Prevention of Corruption Act does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant.

On the point of presumption under Section 20 of the Prevention of Corruption Act, the learned A.P.P. placed reliance on the decision of the Apex Court reported in (2004)3 SCC 753 (T. Shankar Prasad Vs. State of Andhra Pradesh) wherein it is held that the presumption is a legal or compulsory presumption, however, the Court is bound to operate the said presumption if the condition precedent for drawing such presumption is satisfied. Said presumption is rebuttable by proof and not by any explanation which may seem to be plausible. When the words "shall be presumed" are used, it means that the presumption is mandatory.

Shri. Doifode further relied on the decision of the Apex Court reported in 2004 Criminal Law Journal 4191 (State of A. P. Vs. K. Punardana Rao) in which tainted money was recovered from the possession of the accused in trap laid by the Department. Phenolphthalein Test conducted on his hands, pyjama and bed cover proved to be positive. The explanation offered by him was found to be highly improbable. The evidence of defence witness was not reliable. The complainant was an independent witness having two business concerns and the matter related to the tax come within jurisdiction of the accused officer for which the bribe was demanded. So it was held that there was perverse appreciation of evidence and serious miscarriage of justice by the High Court and, therefore, consequently, the order of acquittal was quashed. In the case reported in 2005 Criminal Law Journal 1411 : [2005 ALL MR (Cri) 1027 (S.C.)] (V. Radhakrishna Reddy Vs. State of Andhra Pradesh) it was found that the accused did not deny the fact that the complainant gave him sum of Rs.150/- which was recovered from his pocket. The explanation given by the accused that the said amount was given to him towards the registration fees was found to be not convincing as the fees was only a sum of Rs.50/- and it was required to be paid in treasury under challan. So the learned A.P.P. contended that the defence of the accused no.2/appellant Govinda was not plausible and as such it was to be rejected.

The learned A.P.P. also placed reliance on the decision of the Apex Court reported in 2004 Criminal Law Journal 2829 : [2004 ALL MR (Cri) 2208 (S.C.)] (Varada Rama Mohana Rao Vs. State of Andhra Pradesh), wherein the defence plea was that the appellant's case was totally prejudiced by the appointment of particular person as Prosecutor in the case because he was inimically disposed towards appellant and had conspired to falsely implicate him. In that case, defence plea was that presence of Phenolphthalein powder found in the pocket of shirt of the accused was due to the accused accidentally touched his shirt pocket, which was found to be not tenable since the said powder was found in the inner lining of shirt of accused which could not have been only possible if tainted money was kept in his pocket. A decision reported in 2005 Criminal Law Journal 2145 : [2005 ALL MR (Cri) 1315 (S.C.)] (C. S. Krishnamurthy Vs. State of Karnataka) is relied upon as it was held that the accused being public servant possessed assets disproportionate to his known sources of income. There sanction order was speaking for itself that incumbent has to account for the assets. The sanctioning authority has come in the witness box and deposed about his application of mind to the facts mentioned in the sanction order which were found to be eloquent for constituting prima facie offence under the Prevention of Corruption Act.

Shri. Doifode, the learned A.P.P. placed reliance on the decision of the Apex Court reported in 2001 Criminal Law Journal 515 : [2001 ALL MR (Cri) 565 (S.C.)] (M. Narsinga Rao Vs. State of Andhra Pradesh). In that case, it was held that when there was acceptance of gratification, presumption under Section 20(1) of the Prevention of Corruption Act is a statutory presumption which is also compulsory and not discretionary. In the case reported in 2001 Criminal Law Journal 175 : [2001 ALL MR (Cri) 188 (S.C.)] (Madhukar Bhaskarrao Joshi Vs. State of Maharashtra), while interpreting the word gratification, the Apex Court observed that it must be understood to mean any payment for giving satisfaction to a public servant who received it, and not reward. Possession of currency notes smeared with Phenolphthalein is sufficient to draw legal presumption. So the prosecution need not further prove that money was paid to the public servant. In 2004 Criminal Law Journal 620 : [2004 ALL MR (Cri) 1191 (S.C.)] (State of Andhra Pradesh Vs. Vasudeva Rao), it is held that the proof that the accused had accepted or agreed to accept any gratification, is the only condition sine quo non for drawing such legal presumption. There must be reliable material to hold that there was recovery of money from accused.

19. Having heard the learned counsel for the parties and after having gone through the decisions of the Apex Court and various High Courts, as referred by them, legal position as to the gratification or bribe amount, demand of the bribe amount and acceptance of the money, is crystal clear. The legal position is also clear on the point as to when statutory presumption under Section 20(1) of the Prevention of Corruption Act is to be drawn. It is crystal clear that the statutory presumption that is to be drawn is compulsory and mandatory, but then as has been held by the Apex Court in the decisions referred to above, there must be evidence to establish that whatever amount was found with the accused and recovered from him, when he was apprehended in the trap, is the bribe amount. If that is established then the burden lies on the accused to rebut the presumption by leading cogent evidence and in that his defence should be plausible. It is also clear that the burden on the accused to substantiate his defence or to rebut the presumption is not of the nature as it is on the prosecution. Even it is not necessary for him to lead evidence. What is required is that the accused has to show the preponderance of probabilities of his defence. He cannot succeed in his defence merely on the basis of assumptions and presumptions. It is also clear that the evidence led by the prosecution to prove the involvement of the accused in the commission of the offence, that evidence should stand the test of reliability and credibility. Therefore, even if there is finding of fact as to the guilt of the accused, the appellate Court has every right to interfere with that finding when the evidence does not stand the test of credibility and reliability. As regards the validity of sanction order, it depends on the evidence led by the prosecution. But in that case, if the authority which has accorded the sanction has been examined as witness and his evidence is on the basis of the opinion formed by him, on going through the record that was made available to him, then his order of granting sanction gain corroboration and in that case, the contention raised by the defence that there was no application of mind by the sanctioning authority, merits no consideration at all.

20. In the instant case, the preliminary facts as to the complainant Tekchand accompanied by his mother Girijabai having approached appellant Shankarlal for getting electric connection by giving application and then the latter having processed that application and also having received an amount of Rs.960/- and also executing the agreement as required, are not in dispute. It is also not in dispute that while the application was in the process of consideration and also awaiting completion of some formalities, complainant, on 31/12/1991, visited the office of the appellant Shankarlal and inquired with him as to when he was going to release the electric connection as sought for. It is further not disputed that the complainant on 7/1/1992 approached Dy. S. P. Gavai (P.W.8) and put forth his grievance against the appellant-Shankarlal for his avoidance to release electric connection and it is in the wake of that narration made by the complainant Tekchand, his report vide Exh.19 was accepted and it was on the basis of that report, further preparations have been made for laying trap on the appellant Shankarlal. In earlier part of the judgment, I have elaborately stated as to what happened after the report exh.19 was recorded, till the stage of apprehension of the appellant Govinda on the same day in the premises of the office of the appellant Shankarlal wherein tainted currency notes, two in number, each of 100 rupee denomination, were seized. Here it may be noted that the factum of seizure of tainted currency notes from the pocket of the shirt of the appellant Govinda, is not disputed. It is the prosecution case that the demand of the amount was made by the appellant Shankarlal and it was he who asked the complainant Tekchand to give that amount to appellant Govinda who was then, admittedly, working as Lineman under the appellant Shankarlal. Therefore, the basis for conclusion as against the appellant Shankarlal is that the appellant Govinda accepted the amount as the appellant Shankarlal told the complainant to give that amount to appellant Govinda. In other words, according to the prosecution case, the demand was made by appellant Shankarlal and it was appellant Govinda who accepted the amount as claimed by the prosecution, which fact is not disputed as it was at the behest of appellant Shankarlal. As regards the recovery of tainted notes from the appellant Govinda, though that fact is not disputed, it was the contention of the defence that the said amount was thrusted in the pocket of his shirt by the complainant Tekchand. It is also the defence of the appellant Govinda that like other Linemen, that day, he was also to receive dues of arrears of D.A. and accordingly, the amount received by him was found short by Rs.200/-, so when appellant Shankarlal told the complainant to give the amount of Rs.200/- to the appellant Govinda, he accepted it under the belief that the said amount was towards the deficit amount of Rs.200/- of dues of arrears of D.A. which he was legitimately entitled to get.

21. The material evidence on the point of demand and acceptance of amount consists of the evidence of complainant Tekchand and panch witness Gulab. The prosecution has placed reliance on the report Exh.19 given by the complainant Tekchand then pre-trap panchanama no.1 Exh.29, so also Panchanama No.2 Exh.41 which relates to actual incident of trap wherein the appellant Govinda was apprehended in which tainted currency notes were recovered from the pocket of his shirt and also the evidence of Dy. S. P. Gavai (P.W.8) under whose instructions and directions the trap was laid. In his evidence, he has, no doubt, stated about the procedure that was followed in connection with the trap. It is needless to say that his evidence is a corroborative piece of evidence. Even in his evidence, whatever he has stated about the demand and acceptance of amount, it is on the basis of what the complainant and witness Gulab disclosed to him while drawing Panchanama No.2 Exh.41.

22. Having heard the submissions made by the learned Advocates appearing for the appellants and the learned A.P.P. Mr. Doifode, and in the light of the legal position as has been set out by the Apex Court and the High Courts including this Court, the evidence of the complainant Tekchand and panch Gulab needs close scrutiny to find out whether it stands the test of credibility and reliability as has been rightly pointed out and submitted also by the learned A.P.P., the contradictions which are insignificant facts have no bearing on the prosecution case as well as credibility and reliability of the evidence of the witnesses, even in my judgment, in the cases of the similar nature which involves a detailed procedure to be undergone, when the witnesses are required to give evidence, after considerable time, in the Court, inconsistency as regard insignificant facts is bound to occur. If that is so, it has no bearing on the credibility and reliability of the evidence of the witnesses. But at the same time, on material particulars such as demand, acceptance and the circumstances relating to these factors, there is inconsistency or per se variance which cannot be explained, then the cumulative effect of the same is certainly creating doubt as to reliability and credibility of the versions of the witnesses on the relevant and material factors. Here in the case at hand, admittedly, the complainant Tekchand is an interested witness and as has been held by the Apex Court in the decisions referred by Mr. Mardikar, the learned Advocate appearing for the appellant Shankarlal, such a witness is an accomplice and, therefore, to accept his evidence, there must be corroboration by independent witness. In the instant case, no doubt, the prosecution has examined witness Gulab who acted as panch right from the inception till recording of second panchanama Exh.41. But when the defence has endeavoured to point out glaring inconsistency between the evidence of the complainant and panch witness Gulab, it was incumbent for the prosecution to examine other independent witness namely panch Suresh. But unfortunately for the reason best known to it, the prosecution did not examine panch Suresh. I have already pointed out that evidence of Dy. S. P. Gavai (P.W.8) is not direct evidence of independent nature to lend corroboration to the evidence of complainant Tekchand. It is in this background that the evidence of complainant Tekchand has to be carefully scrutinized with caution to see whether it stands the test of credibility and reliability.

23. As already stated, it is the prosecution case that demand of bribe amount was made by accused Shankarlal and that the said amount was accepted by accused Govinda at the behest of accused Shankarlal. This makes clear that there was no demand of amount much less bribe amount, directly by the appellant Govinda. It is further crystal clear that bribe amount is not accepted by the appellant Shankarlal directly. From the evidence on record, it is clear that recovery of tainted currency notes was from appellant Govinda when he was apprehended by the trap party headed by Dy. S.P. Gavai (P.W.8) accompanied by panch witness Suresh. The factum of recovery of tainted currency note from the appellant Govinda is established. Even the defence of the appellant Govinda that the tainted currency notes were thrusted in his pocket lends assurance to the recovery of tainted notes from him. Therefore, all objections so also criticism by the learned Advocate Shri Dharmadhikari appearing for the appellant Govinda in that regard, are meaningless. In other words, infirmities pointed out such as not sending the tainted currency notes to Chemical Analyzer for examination, not sending the seized solution collected in bottle, so also hand wash of appellant Govinda, carry no merits and substance. In that regard, the report of C.A. Exh.75 when exhibited, has credential value and that is much more so when the report of C.A. is positive. It is in that sense, the infirmities which have been pointed out by the learned counsel for the appellant Govinda has no bearing when the report of C.A. Exh.75 is positive.

24. The complainant's evidence on the point of demand and acceptance of the amount is that when he visited the office of appellant Shankarlal, with his mother, they asked appellant Shankarlal to provide electric connection urgently. On that appellant Shankarlal told them that he would complete their work within 2-3 days. However, he demanded Rs.200/-. He told them that pay Rs.200/- so connection will be provided. He also told that if they pay Rs.200/-, it would be beneficial to them. The complainant then told the appellant Shankarlal that he was not having money. On that Shankarlal told them that they will have to pay Rs.200/- and asked them to come when they will be having Rs.200/- on the next Tuesday. In his evidence, he further stated that when he had talked with Shankarlal, at that time, the Lineman appellant Govinda Dhurve was present there. He also stated that appellant Shankarlal Bhawarikar always used to say that he would provide electric connection provided amount of Rs.200/- was paid to him. He further stated that on 7/1/1992, he visited the office of A.C. B. and told Dy. S. P. Gavai about the demand of Rs.200/- by the appellant for providing electric connection. Then he stated in his evidence about the narration of everything that had taken place on the basis of which A.C.B. recorded his complaint Exh.19 and then after calling panchas to whom narration in the complaint was read over and the procedure for laying the trap was demonstrated, and for that Panchanama No.1 vide exh.29 was drawn. He further stated that on that day, at about 3 P.M. he accompanied by panch witness Gulab reached the office of appellant Shankarlal. There was rush in the office and the appellant Shankarlal was present in the office. So he entered the office and occupied a chair that was vacant. While panch Gulab was standing by his side. The complainant then asked Shankarlal as to what happened as regards electric connection and when he (Shankarlal) was going to provide electric connection. On that, Shankarlal asked him as to what he has done in regard to demand of Rs.200/- and to that the complainant told that he has brought the amount of Rs.200/- as per his demand. Then appellant Shankarlal asked them to wait for half an hour and, therefore, the complainant so also panch Gulab remained waiting outside the office for about half an hour. About half an hour thereafter, Shankarlal closed his office and then he proceeded to his house along with panch Gulab, complainant, appellant Govinda Dhurve and other one or two Linemen. He further stated that when appellant opened the lock, they all entered the room and he took out tainted currency notes for bribe amount from left side chest pocket of his shirt and when he was about to tender the same to appellant Shankarlal, the latter asked him to give that amount to appellant Govinda Dhurve and then he gave those two tainted currency notes to appellant Govinda Dhurve. He further stated that he gave those tainted currency notes to appellant Govinda Dhurve on the say of appellant Shankarlal and appellant Govinda Dhurve accepted that amount from him, counted the same and after that, kept that amount in the left side chest pocket of his shirt. It is further his evidence that after giving the amount to Lineman Dhurve, he came out of the room. He stated that in the room of appellant Shankarlal, there was no more talk in respect of the amount. Then he gave signal to the trap party and the members of the trap party who were in the vicinity of the room when the signal was given, entered the room of appellant Shankarlal and caught hold appellant Govinda. The complainant further stated that he told A.C.B. officers that bribe amount was with appellant Dhurve. In his evidence, he reiterated that he told Mr. Gavai that demand of money was made by appellant Shankarlal and on his say, he gave those tainted notes to Shri. Dhurve. It is also in his evidence that thereafter as directed by A.C.B. officer, panch Suresh Somkuwar took tainted currency notes from the chest pocket of the shirt of the appellant Govinda.

25. It is needless to say that the complainant Tekchand was subjected to searching cross-examination by the defence. It was suggested to him that appellant Shankarlal on 6th January, 1992, had been to his field along with one person and that when he noticed that complainant was watering the standing wheat crops, it was appellant Shankarlal who asked him as to how he was watering the wheat crops when electric connection is not provided. It was also suggested to the complainant that appellant Shankarlal then told the complainant that using electricity in that manner without getting authorized connection amounts to theft of electricity. It was also suggested to the complainant that appellant Bhawarkar was to lodge complaint against the complainant for theft of electricity. It is true that all these suggestions have been denied by the complainant. These suggestions as I understand, have bearing on the defence of appellant Shankarlal that he has been falsely implicated in this case at the behest of the complainant Tekchand apprehending that the appellant Shankarlal as he has said when he visited the field of complainant Tekchand, was likely to lodge a complaint for theft of electricity against the complainant. The claim of witness Tekchand that he visited the office of appellant Shankarlal on number of occasions since four months, has been denied, but witness stated in his cross-examination that after meeting him, the appellant Shankarlal proceeded on one month leave. The complainant, in his cross-examination, has admitted that in his statement recorded by A.C.B. on 8/1/1992, there is no mention that "On that Bhawarkar asked me as to what I have done in regard to demand of Rs.200/-. On that, I told Bhawarkar that today I have brought Rs.200/-". The complainant admitted that if one intends to have electric connection for pump sets, then one has to submit an application, remit necessary charges and relevant documents. He has stated that the appellant Shankarlal obtained documents and also amount of Rs.800/- saying that he would complete all formalities of documentation. He admitted that in his complaint Exh.19, he has not stated that to complete documentation, he gave Rs.800/- to the appellant Shankarlal. He further admitted that his mother was required to sign the agreement. He also admitted that till the time such agreement between the consumer and M.S.E.B. is not executed, it is not possible to provide electric connection. He further admitted that Shankarlal told him that yet he has not received the form of agreement. However, he also stated further that the appellant Shankarlal thereafter obtained their signatures on that agreement. In his cross-examination, he further stated that on the day of trap, when he went to the office of the appellant Shankarlal, he found appellant Shankarlal and number of Linemen present there in the office. But, this witness feigned ignorance whether that day and at that time, Shankarlal was making disbursement of amount of D.A. to Linemen. The complainant admitted that Shankarlal told him that the wife of his friend Mr. Diwate had expired and he had asked him to go out. He denied the suggestion that Shankarlal did not put forth any demand of bribe.

26. Complainant Tekchand was subjected to cross-examination by the counsel for the appellant Govinda. The complainant admitted that since the time they were taking paddy crops, they were irrigating their land. In his cross-examination, he stated that the day on which he took his mother with him to the office of M.S.E.B., even prior to that date, the signatures were obtained on the agreement. In his evidence, he stated that he was knowing Lineman Dhurve from last 10 years. That on 31/12/1991 when he went to the office of Shankarlal, people were there in his office, but he did not remember as to who those persons were, who were present in the office. He also stated that the persons who were present were probably Linemen and farmers. Then, he gave a candid admission saying that it is true that had it been the fact that Lineman Dhurve was present in the office of Shankarlal on 31/12/1991, then he ought to have mentioned it in his complaint. He stated that appellant Dhurve never demanded bribe from him. Whatever the talk in regard to bribe amount took place, it was with the appellant Shankarlal. He further stated that probably Dhurve might not be aware whether there was any talk between him and Shankarlal in regard to money.

27. He stated in para 5 of his examination-in-chief that when the talk between him and appellant Bhawarkar about the bribe amount took place, at that time, Lineman Dhurve was present. He stated that it is true that he told that fact for the first time at the time of giving deposition before the Court. While giving complaint Exh.19, he did not inform this fact to A.C.B. officer as Shri. Dhurve was not concerned with the demand of money. He stated that number of Linemen were present on that day in the office of Bhawarkar and, therefore, he was under presumption that the Lineman Mr. Dhurve was probably there. Therefore, he has stated that Lineman Dhurve was present in the office as mentioned in para 5 of his examination-in-chief.

28. The complainant further stated that he was knowing accused Dhurve-Lineman because at village Doda and even nearby villages accused Dhurve used to work as Lineman. He stated that it is also true that the reputation of accused Dhurve was very good. There was no complaint that Lineman Dhurve demanded money. He further stated that it is true that in his statement dated 8/1/1992, there is no mentioned that on 31/12/1991, Lineman Dhurve was present in the office of Mr. Bhawarkar. He denied the suggestion that accused Bhawarkar did not ask him to pay amount i.e. hand over the amount to Mr. Dhurve. In his evidence, he stated that one person was standing near the door and pointing towards him, Bhawarkar said to give the amount to him and saying so, Bhawarkar by gesture asked that fellow to accept the amount. This witness again admitted that there is no mention in his previous statement recorded by A.C.B. that Mr. Dhurve was present in the office of Bhawarkar. On behalf of the appellant, question was put to the complainant, "In your previous statement recorded by A.C.B., there is no mention that there was any talk about demand of bribe in the office of M.S.E.B.?" It appears that this question was objected on the ground that it was not case of the prosecution that the accused no.2 i. e. appellant Govinda had demanded bribe. I do not think that the trial Court was right in rejecting the question that is put by the counsel for the accused Govinda. It is true that it is not the prosecution case that the demand of bribe amount was made by the accused no.2-Govinda. But then on the basis that the demand was made by the accused no.2-Govinda at the instance of accused no.1- Shankarlal, the prosecution has charged the accused no.1/ appellant Shankarlal. If that is so, then the charge in that regard would sustain only when it is proved that the demand was at the instance of accused no.1- Shankarlal.

29. This witness denied the suggestion that when they reached to the office of Shankarlal, the appellant- Shankarlal was disbursing the amount of D.A. to the Linemen. He also denied the suggestion that while giving payment to Lineman Dhurve, Bhawarkar gave Rs.200/- less and asked Dhurve to collect the deficit amount from him and for that called him to his room for collecting the deficit amount of Rs.200/-. This witness has also denied that on that day, the appellant Dhurve had been to the room of the appellant Shankarlal so as to get or collect deficit amount of D.A. It is also denied that at that time when Dhurve was just to make entry in the room, he forcibly stuffed Rs.200/- in the pocket of Dhurve saying that Bhawarkar has asked him to give that amount to him. He denied the suggestion that he told Dhurve at that time that the amount of D.A. was given by Bhawarkar. He also denied the suggestion that he had heard the talk between Dhurve and Bhawarkar that Bhawarkar paid less amount of Rs.200/- towards D.A. to appellant Dhurve and taking disadvantage of that fact, he tendered money to Mr. Dhurve. He admitted that after he tendered the tainted currency notes to Dhurve, he gave signal. But he denied the suggestion that thereafter immediately A.C.B. staff caught hold the hands of Dhurve. This witness stated that he gave information, thereafter the hands of Dhurve were caught. He also admitted that he gave signal, thereafter, on the spot, immediately, A.C.B. caught the hands of Dhurve. He stated that it is true that at that time, appellant Dhurve was shouting saying "He is poor; he did nothing." This witness admitted that he told to A.C.B. staff that whatever Dhurve was saying is correct. This witness, in an answer to the question, "Accused No.2 Dhurve has no concern with all this?" stated, "He has no concern. I gave money to Dhurve on the say of Bhawarkar." That is not all. This witness further stated, "It is true that Dhurve was not having knowledge for what cause I gave money."

30. In order to assess the evidence of complainant Tekchand, it is necessary to see the contents of the report Exh.19. It is stated, "On 31/12/1991, I had gone to Deolapar and met Shri Bhawarkar Saheb by going to his office. I again requested him to provide electric connection. At that time, I requested him to take my mother's signature on the agreement papers. Shri. Bhawarkar then replied that he had sent a person to Ramtek for bringing an agreement form and further asked us to wait for some time. We waited there upto 4 O'clock, but the agreement form had not reached there till that time. When we were about to go outside, Shri. Bhawarkar Saheb again called me and asked me to give an amount of Rs.200/- for getting electric connection earlier. I told him that I was not having money at that time. Then Bhawarkar told that bring the same on the next Tuesday."

Perusal of the contents of the report Exh.19 shows that there is nothing in the conversation between the complainant and the appellant Shankarlal Bhawarkar as regards the payment of amount of Rs.200/- as bribe amount. This is sticky in the sense that even otherwise as the evidence stands, as on 31/12/1991, the procedural part of documentation was not complete. Then as has been candidly stated by witness Subhash Kolhe (P.W.3) who was working as the Assistant Engineer with M.S.E.B., Bhawarkar, Sub-Engineer, handed over the charge to his successor Shri. Pathan on 18/1/1992. At that time, as per the list of nine items, the work in respect of releasing electric connection to complainant was in progress. The witness has stated that in the list heading "work in progress" at Sr. No. No.7, there is note about the application of Girijabai Bhal. He further stated that application of Girijabai i.e. mother of complainant Tekchand was at the office of Sub-Divisional Officer, Ramtek, as the turn of Girijabai, as per the seniority list, was not reached, and further directions in respect of the said application of Girijabai, were not issued to Deolapar Distribution Centre. This witness, in his cross-examination, stated that the Sub-Engineer Bhawarkar was not empowered to sanction the electric connection for pump set. It is in this context the claim of prosecution that the appellant Shankarlal demanded bribe amount in his capacity as public officer, has to be considered. The trial Court has not considered whether asking for an amount by a public officer who is not empowered to do the official work of release of electric connection, would amount to commission of offence under Sections 7, 12 of the Prevention of Corruption Act, punishable under Section 13(2) of the said Act. This takes me to consider the evidence of panch witness Gulab (P.W.2). It is no doubt true that as claimed by the complainant Tekchand, this witness has, in his evidence, given eye witness account of alleged demand and acceptance of amount by the appellants. In his evidence, he has stated that on 7/1/1992, when he was summoned to attend the office of A.C.B., he was apprised of the report Exh.19 given by the complainant and also of the procedure for laying the trap. This witness, no doubt, as claimed by the prosecution, had accompanied the complainant as per the instructions given by the Dy. S.P. Shri. Gavai (P.W.8), to the office of the appellant Shankarlal Bhawarkar. He further stated that when he was apprised of the complaint Exh.19 given by the complainant, he was apprised of the demand made by the appellant Shankarlal from the complainant in his office, a week before. In this background, this witness stated that after the formalities regarding the Pre-Trap Panchanama Exh.29 were made, along with the complainant, he proceeded to the office of appellant Shankarlal where he found that there were four persons in the office and he himself and the complainant Tekchand entered the room and it was noticed that in all three persons were sitting and one chair was vacant and then the complainant, pointing towards Shankarlal, said that he was the officer concerned and the complainant greeted him. That time, according to this witness, appellant Shankarlal told the complainant that at that moment, he was busy and, therefore, he asked them to sit for some time. He then stated that the complainant asked Bhawarkar as to when he (appellant Shankarlal) would do his work and that he had been to his office 2-3 times back and that he has already remitted the charges, demand note was also tendered to him, yet he (appellant Shankarlal) had not supplied electric connection to him. This witness then stated that appellant Shankarlal told that he would do his work within a day or two. The complainant, however, told the appellant Shankarlal that last time, he had told the same thing that he would do the work within a day or two, but still it was not done. On that, the appellant Shankarlal told that at present he was busy in work and asked them to wait for some time. So both of them came out of the room and after having waited for some hours, they entered the room, but Shankarlal again asked them to wait. It was about 5.30 P.M. Then Bhawarkar closed the office and thereafter, by crossing the lane, they came on the road, and reached to the room of appellant Shankarlal who opened the room and then all of them entered the house of Shankarlal. It appears that after having said so, a question was put to this witness by the learned Prosecutor as to what for they went to the house of Bhawarkar. This question was objected and according to me, rightly, by the advocate for the accused no.1-Shankarlal. But the record shows that the learned Judge reserving the objection of defence, permitted the prosecutor to put the question. Then the witness answered the question saying that as Bhawarkar called them at his house, they went to the house of Bhawarkar. Then this witness stated that the complainant again questioned Bhawarkar as to when he would do his work and to that question, Bhawarkar asked the complainant saying that what he had done about his work which he had told him last time. On that the complainant answered in the affirmative saying that yes, he had done his work. The witness further stated that the complainant Bhal took out the amount from the pocket of his shirt. On that, Bhawarkar said to complainant to pay that amount or to tender that amount to the Lineman. That Lineman was standing in the compound of Bhawarkar. He further stated that the said Lineman was present in the Court hall on that day. The witness pointed out towards the accused no.2 Dhurve, and said that he was that Lineman who was present in the compound of Bhawarkar. He further stated that then they went near the Lineman who was standing in the compound, i.e. accused no.2- Dhurve, and complainant then said to Mr. Dhurve that in the last week, in his presence, Bhawarkar demanded from him (the complainant) Rs.200/- and that he (the complainant) had brought that amount of Rs.200/- and Bhawarkar asked him (the complainant) to tender Rs.200/- to him and on saying that, the complainant tried to give the amount to accused Dhurve. This witness further stated that Dhurve accepted that amount and kept that amount in his pocket. Then this witness stated that as per the instructions, appellant Dhurve was apprehended and it was the panch No.2 Somkuwar who, on being asked by the A.C.B. Officer Gavai, took out the tainted currency notes from the pocket of Dhurve. Then his evidence is regarding the details of the Panchanama no.2 vide Exh.41 drawn then and there only. The evidence of this witness in the first place makes it clear that the amount demanded was tendered by the complainant to accused Dhurve who was standing in the compound of appellant Bhawarkar. His evidence shows that the conversation between the complainant and the accused no.1- Bhawarkar took place in the room, but actually the amount was given outside the room in the compound where the appellant Dhurve was, according to the witnesses, standing. I_ taken into consideration, it gives an impression that whatever demand that was made for the amount and the payment of the amount to accused Dhurve, that incident has taken place inside the residential room of appellant Shankarlal. The evidence of the complainant even to that extent is that after the amount was tendered, he came out of the room and gave signal and in response to that, the members of trap party entered the room and apprehended the appellant Dhurve. So it is needless to say that their evidence is at total variance so far as the place and manner of the incident of demand of amount, acceptance of the amount and recovery of the amount from the appellant Dhurve, are concerned. It is true that mere variation of the place of occurrence in such matters will not be that much material, but at the same time, it has its own bearing rather it would affect the relevant factor of making demand so also the acceptance of the amount by the concerned accused namely appellant Govinda Dhurve. This is not a case where the amount has been given to the accused who has demanded. The prosecution case is that the amount has been demanded by the appellant Shankarlal while the amount was accepted by the appellant Dhurve. So necessarily, presence of the appellant Govinda Dhurve at the time when the demand was made, or his knowledge that the demand was made as an amount of bribe, is very relevant and it is in this context, the variance of place of acceptance and demand of the amount will materially affect the claim of the prosecution as to the knowledge on the part of the appellant Govinda Dhurve that the amount that was being tendered to him was a bribe amount and that too, the same was demanded by the appellant Shankarlal and tendered to him to his knowledge at the behest of the appellant Shankarlal. It was, therefore, necessary for the prosecution to establish clinchingly that it was within the knowledge of the appellant Dhurve that the appellant Shankarlal had demanded the amount as bribe amount and that it was the appellant Dhurve who knew that the appellant Shankarlal had told the complainant to give the amount to appellant Dhurve.

31. It is, therefore, necessary to scrutinize the evidence of this witness Gulab (P.W.2) and to see what he has stated in his evidence. He has candidly admitted that in Exh.20, which is the list of articles found at the time of personal search of complainant, there is no reference about the bribe amount of Rs.200/-. It has also come in the evidence of the complainant as well as this witness that in the pocket of the complainant, three currency notes of Rs.100/- denomination were found. This witness has admitted that they entered the room of appellant Shankarlal on their own accord. In the evidence of this witness, he has not stated even a word about the demand of money by appellant Shankarlal at the time when, initially, this witness accompanied by the complainant, entered the office room of Shankarlal. But it is clear that when they went to the residential room of the appellant Shankarlal, it was appellant Shankarlal, who asked the complainant saying that last time he (appellant-Shankarlal) had told him (complainant- Tekchand) whether he (complainant-Tekchand) had done his work and then in reply, the complainant told in the affirmative saying that yes, he had done the work, and on saying so, the complainant took out the amount from the pocket of his shirt and the appellant Shankarlal told the complainant to pay the amount or tender that amount to Lineman who was standing in the compound of the house of appellant Shankarlal. So this evidence of witness Gulab (P.W.2) about the conversation in respect of the demand of the amount, no where suggests that the demand was of the bribe amount. Admittedly, the appellant Dhurve was not in the room where the conversation had taken place. The evidence shows that the appellant Dhurve was in the compound outside the room. There is absolutely no evidence to show that in any manner, the appellant Dhurve was made known that he was to receive the amount from the complainant on behalf of the appellant Shankarlal on his asking the complainant to give the amount and much less the amount as bribe amount. This witness, in his cross-examination, admitted that when there was conversation between the complainant and the appellant Shankarlal, he was standing at the door. He further admitted that he was hard of hearing since last 12 years. The spot where he was standing, from that spot the place where the accused Bhawarkar and the complainant Bhal were speaking, was at a distance of 8' to 10'. From the map on record, the distance where the appellant Dhurve was apprehended outside the room was 33'. In the background of these facts, the witness Gulab had audacity to say that he heard the conversation that was going on between the complainant and the appellant Shankarlal. He had audacity to deny that as he was hard of hearing, he could not hear the talk or conversation that was going on between them. In his cross-examination, he admitted that when the bribe amount was tendered to appellant Dhurve at that time, accused no.1-Shankarlal was not on the spot. In his cross-examination, he has admitted that on that day, the appellant Bhawarkar told that the wife of his friend expired and he intended to attend the funeral and for that he was required to go. In his cross-examination, he also admitted that in the year 1990, his ear was operated, but that operation was unsuccessful. He admitted that on that day, for the first time, he saw the complainant Tekchand. He also admitted that since the time they entered in the office of M.S.E.B., till the time they entered into the house of appellant Bhawarkar, in between that period, there was no talk between them and A.C.B. officer Gavai and any member of trap party. He stated that none of them gave any signal to A.C.B. officer Gavai. What is surprising is that this witness candidly admitted that at the time when they entered the office of appellant Bhawarkar, he was making payment to the employees. But he made no efforts to ascertain for what purpose Bhawarkar was making the payment. He admitted that when the complainant entered the room of Bhawarkar, he stood at door steps. He further stated that he was the only person who was standing near the door of the room of Bhawarkar. He admitted that in panchanama no.2 Exh.41, there is no mention that the bribe amount was tendered to accused no.2- Dhurve in the courtyard of the house of accused no.1- Bhawarkar. The signal which he gave to the trap party, was given at about 6.30 to 7.00 p.m. He admitted that he gave signal after money was tendered to appellant Dhurve. This witness was thoroughly cross-examined over the panchanama no.2 and ultimately this witness, to a question put to him on panchanama Exh.41, stated, "By gesture witness says that at that time I was not having watch. But again says that Ex. 41 is not that panchanama No.2." This witness admitted that Dhurve was standing at a distance of 33 feet from the room of Bhawarkar where the complainant tried to tender the amount. This witness denied the suggestion that the complainant told Dhurve that Bhawarkar asked him to pay Rs.200/-, the amount of D.A. due to Dhurve. He also stated that since he came out of the room, he straightway went towards M.S.E.B. office and gave signal to Mr. Gavai and then after 5 to 6 minutes, A.C.B. Officer Gavai and staff arrived. He denied the suggestion that till that time, the complainant had caught hold Dhurve, but he admitted that when he gave signal and till the trap party arrived on the spot, the complainant engaged Dhurve in talk and made him to stop there and there only. He further admitted that he did not know what was the conversation going on between the complainant and Dhurve. He admitted that when trap party caught hold Dhurve, at that time, Dhurve was saying that he was a poor person and he did nothing and he was asking why they were holding him. This witness candidly admitted that he had no personal knowledge as to what was the dealing in respect of payment between the complainant and Dhurve and that he was not aware whether the complainant and Dhurve they were having any previous money transactions.

32. The prosecution has also examined witness Girijabai (P.W.7), as, according to her, she had accompanied her son Tekchand (P.W.1) on 31/12/1991, when they went to the office of appellant Shankarlal. In her evidence, she has stated that about six months, assurance was given that electric connection will be given and that though they had remitted amount of Rs.800/- yet there was demand of Rs.200/-. She also stated that on the day when there was demand of Rs.200/-, they were not having that amount and, therefore, on the next Tuesday, when Rs.200/- were paid, the accused were caught.

Mr. Doifode, the learned A.P.P. heavily relied on the evidence of witness Girijabai and submitted that the factum of payment of Rs.200/- by the appellant Shankarlal, as stated by Tekchand (P.W.1), has been corroborated by this witness Girijabai in her evidence. That, it is only on the basis of that demand on 31/12/1991, the complainant approached A.C.B. Mr. Gavai on 7/1/1992, and lodged report Exh.19 and then as per the trap laid, the said amount was given to appellant Shankarlal through the appellant Govinda.

33. In order to appreciate these submissions, it is necessary to see the cross-examination of witness Girijabai by the appellants. In her cross-examination, she admitted that her son used to look after all the transactions relating to the field and she did not know about that transactions. From the tenor of the cross-examination of this witness, it is clear that her evidence has been shattered. If the evidence of Tekchand is considered, then in that background, it is very difficult to accept the claim of witness Girijabai that on 31/12/1991, she had been to the office of the appellant Shankarlal, with her son. In his evidence, Tekchand (P.W.1) admitted that he contacted the appellant Shankarlal in November, 1991 and December,1991. He admitted that after meeting him, the appellant Shankarlal went on one month's leave, but he could not tell exactly in which month, the appellant Shankarlal was on leave. This witness, in his cross-examination, admitted that he took his mother with him to the office of M.S.E.B. for the purpose of signing some documents, but he stated that he did not remember that whether that date was 31/12/1991. He further stated that when he lodged the complaint with Mr. Gavai, probably he has stated the date. When his attention was drawn to Exh.19, he stated that in Exh.19, there is reference that he took his mother to the office of M.S.E.B. on 31/12/1991, but he again stated that he has stated the date as 31/12/1991, as stated probably. According to him, the day on which he took his mother along with him to the office of M.S.E.B., even prior to that day, already signatures were obtained on the agreement. He then stated that he took his mother to the office of M.S.E.B. after 31/12/1991. Giving much emphasis on this admission by the complainant Tekchand, the learned counsel appearing for appellants vehemently submitted that the visit of complainant Tekchand and his mother Girijabai to the office of appellant Shankarlal on 31/12/1991 was palpably imaginary. At one stage, it is claimed that the signatures on the agreement of complainant and his mother Girijabai were taken and it was on 31st December, 1991, but the evidence of Girijabai shows that her signature was not taken on 31/12/1991 and it lends assurance to what the witness Tekchand had stated that though on that day, they were asked to wait for getting the agreement executed, the same could not be done as the form of the agreement was not available. Therefore, it appears that the claim of witness Girijabai that she had been to the office of Shankarlal along with her son on 31/12/1991, is not true. Therefore, consequently, her claim that in her presence, there was demand by the appellant Shankarlal of amount of Rs.200/- on 31/12/1991, cannot be believed.

34. Appellant Shankarlal, when was examined under Section 313 Cr.P.C., gave a detailed statement quite consistent with his defence stating that he never demanded bribe. According to him, Tekchand made false implication. One Jagdish Jaiswal and his brother used to indulge in illegal act of killing animals, of which he got information. He further stated that villages of Tekchand and that of Jagdish are near to each other and to trap him unnecessarily, false complaint was lodged. He stated that he lodged the complaint against Jagdish Jaiswal for cheating him. Jagdish Jaiswal threatened to kill him. He lodged a complaint about that incident. The work of Tekchand was completed. There was no order from Ramtek to release connection on the basis of the application of Girijabai. He also stated that Tekchand used to commit theft of electricity for which he caught him red-handed. That was the cause why Tekchand made false allegations against him. On the day when Tekchand came to his room with money, he questioned him for that. He never demanded money. That time, Mr. Manjiwar was in his room as he was to go along with him by riding on the bike of Mr. Manjiwar to attend the funeral of one of the employees of M.S.E.B.

35. In addition to this statement, the appellant Shankarlal examined himself as witness in defence. His evidence is at Exh.98. In his evidence, he has given the details of the procedure when an application is received for releasing electric connection. In his evidence, he has also stated as to what was done by him after the application of Girijabai was received. In his evidence, he stated that if the connection is sanctioned, then such order of issuance of connection is passed by the Assistant Engineer of Ramtek office of M.S.E.B. In his evidence, he has flatly denied that there was demand of Rs.200/- by him from the complainant Tekchand. In fact, according to him, he questioned Tekchand as to why he had come to him. He also told him to go to Ramtek to execute the agreement and if Ramtek office would release the connection, then he will connect the lines. He also stated that when he went to his room on that day from his office, as he had to go out to attend the funeral, he saw the complainant Tekchand having entered in his room and on seeing him, he shouted saying as to why he was chessing him, when his work is pending with Ramtek office, and asked him to leave the room. When he came out of the house, he saw that both the hands of appellant Dhurve were being washed with some solution. He stated that Mr. Gavai who was there, had shown him his identity card and then the person who was in the company of Mr. Gavai had caught hold his hands and that fellow brought him outside his room. He further stated that Mr. Gavai told him that he had demanded bribe from Tekchand through Mr. Dhurve. To that, he told Mr. Gavai that Dhurve did not turn up to his room. He also told that he made Tekchand to leave his office so also his room.

36. In his evidence, appellant Shankarlal also stated that some persons have taken illegal connections and those persons were using those electric connections for killing wild animals and when he made enquiry about it, it had revealed that one Mr. Jaiswal from village Salai had obtained illegal connection and by use of illegal connection, he was killing wild animals with the help of illegal electric connection. In his evidence, he placed on record the complaint of Range Forest Officer vide Exh.100. Thereafter, he lodged complaint against Santosh Jaiswal at Police Station, Deolapar in which he made allegations that Santosh Jaiswal and his associates were killing wild animals with the help of electric connections obtained illegally. The complaint was lodged on 17/12/1991. He produced the copy of the same, vide Exh.101. He further stated that then Jagdish Jaiswal started giving threats to him of dire consequences and for that he lodged complaint against him with P.S.O. Police Station Deolapar. He filed copy of the complaint which is marked as Exh.103. He also received summons relating to the complaint which he made against Jaiswal. He produced that summons which is marked as Exh.104.

Then appellant Shankarlal was subjected to cross-examination by learned A.P.P. Nothing has been brought in his cross-examination to falsify his statement. He was also cross-examined by the counsel for the appellant-Govinda, in which he has stated that he was making payment of D.A. Mr. Dhurve, accused no.2, came later on to collect Rs.200/- from him. He admitted that Ramtek office used to issue release order in respect of the electric connection and that, till the time they used to receive such release order from Ramtek office, it was not possible for them to release the electric connection. He also stated that in case of complainant Tekchand Bhal, there was no such order of release of electric connection from Ramtek Office. In his cross-examined by the learned A.P.P., he flatly denied the suggestion that on 7/1/1992, when Tekchand came to his office, he had talked with the complainant Tekchand that on last Tuesday, he told the complainant that he would give connection within one or two days, and that on 7th January, 1992, he told Tekchand to see him at his residential room, and that when they entered in his room, he asked the complainant about the money. He denied that the complainant Tekchand told him that as per his say, that day, the complainant had brought the amount and then the complainant asked him to accept the amount. He also denied the suggestion that at that time, accused Dhurve was standing near the door of the room and appellant Shankarlal told Tekchand to give money to Dhurve and that as per his instructions, Tekchand gave bribe amount to appellant Dhurve.

37. The trial Court discarded the defence of appellant Shankarlal as to his false implication at the behest of Mr. Jaiswal. It was observed that this defence was an afterthought showing inimical relations between the appellant Shankarlal and complainant, because of the complaint lodged by Shankarlal against one Jaiswal, in the Police Station. I have already pointed out that though the appellant Shankarlal was subjected to cross-examination, when he gave his evidence on oath as witness, except denial, nothing has been brought in his cross-examination. As regards his say about enmity with Jaiswal because of the complaints lodged against him regarding illegal acts of killing animals by committing theft of electric energy, it is supported by the copies of the complaints which were placed on record. Having regard to these documents Exhs. 101, 103 and 104, letter Exh.101 is dated 17/12/1991, while the complaint Exh.103 lodged at Police Station by the appellant Shankarlal was dated 31/12/1991 and the summons issued to Jaiswal in connection with the complaint lodged against him vide Exh.104, if taken into consideration, it is very difficult to accept the finding recorded by the trial Court that the defence of the appellant-Shankarlal as to the enmity, is an afterthought. So the documents, more particularly the letter exh.101 dated 17/12/1991, which itself is relevant as it is much prior to the alleged date of incident i.e. 7/1/1992, and the alleged date of first demand i.e. 31/12/1991, make his evidence worthy of credit. It is true that in his evidence, the appellant Shankarlal has stated that on 7/1/1992, the complainant Tekchand had been to his office so also to his room. But at the same time, he has denied the prosecution claim that Tekchand had been to him that day and he made demand of money from him and that the amount which he offered to him, was accepted by appellant Govinda at his instance. Therefore, on appreciation of evidence of appellant Shankarlal, and having regard to the infirmities in the prosecution case on the factum of demand and acceptance of amount, it is to be said that the defence of appellant Shankarlal is probable.

38. Even as regards the defence of appellant Govinda, the trial Court has rejected it on the ground that his defence was multi-folds and self-contradictory. It is no doubt true that his defence is two-fold as, according to him, he has not accepted the amount and the amount had been thrusted in his pocket. It is also his defence that he was not knowing as to for what purpose the amount was given to him by the complainant. He has stated that he did not know that the appellant Shankarlal had asked the complainant Tekchand to give the amount to him. It is also his defence that when the amount was accepted, he did not know that it was a bribe amount. So if this defence is taken into consideration, in the context of his first defence of thrusting the amount in his pocket by the complainant, apparently, it appears that his defence is self-contradictory. But at the same time, the observations of the trial Court that because of inconsistency or defence being self-contradictory, the same was liable to be rejected, does not seem to be correct. In this context, the trial Court observed that there was no material on record, brought by the defence to substantiate the defence. In this context, it is rightly submitted by the learned counsel for the appellants that in a criminal case, it is not at all required for the defence to establish his defence beyond reasonable doubt and it is in this sense that there is no burden on the accused, as on the prosecution. What is required for the accused is to substantiate his defence by showing the preponderance of probabilities. It is in this situation, therefore, even falsity of the defence or failure on the part of the accused to establish his defence, in no case, will be sufficient to establish the prosecution case and to say that the accused has committed the offence. So, in my judgment, the appellants have made out a case of their defence by showing the preponderance of probabilities. It is needless to say that the prosecution will stand or fall on the basis of the evidence led by the prosecution to establish the guilt of the accused. So inconsistency in the defence by itself is not sufficient to hold that the accused has committed an offence. In my opinion, the case stands on a better footing as appellants in their defence, have succeeded in showing that by preponderance of probabilities, their defence is probable. That is much more so in case of appellant Govinda Dhurve. As pointed out in earlier part of judgment, both the star witness, the complainant Tekchand (P.W.1) and witness Gulab (P.W.2) have given candid admissions that appellant Govinda was not aware of the conversation between the complainant and the appellant Shankarlal, much less about the demand of amount by appellant Shankarlal as bribe and also appellant Shankarlal having told the complainant to give the amount to appellant Govinda. The evidence of complainant Tekchand and that of panch witness Gulab is contradictory even as regards the presence of appellant Govinda in the room of the appellant Shankarlal where the alleged conversation took place. Even in that regard, the evidence of both these witnesses is so contradictory that it is very difficult to hold that such conversation took place regarding the demand of the amount by the appellant Shankarlal and the complainant Tekchand having given the amount as per the demand. The scrutiny of evidence of these two witnesses, as has been discussed earlier, goes to show that the witnesses were not unanimous as to at which place whether in the office room or the residential room, the demand was made and the amount was accepted. What is found on the closed scrutiny of the evidence of these two witnesses, is that their evidence is self contradictory. That is to say, though the witnesses have stated in their examination-in-chief that the conversation regarding the demand took place in the office room, but then it is brought in their evidence, when they were subjected to cross-examination, that when they entered in the office room, nothing happened as regards the demand of amount, but appellant told them that he was in hurry and then when he left the office for going to his room, these witnesses of their own, followed him and then the witnesses claimed that in his residential room, there was conversation in which, as claimed by the witnesses, appellant Shankarlal, after having enquired with the complainant whether he had brought the amount, asked him to pay the amount to Lineman who was standing near the door. But at the same time, the witnesses have stated in their evidence that after this conversation and when the appellant Shankarlal told to give the amount to appellant Govinda, the complainant Tekchand gave the amount and he came out of the room and gave signal and when the trap party came there, the appellant Govinda was apprehended by caught holding his hands and the amount was then recovered. It is not enough, but both the witnesses have audacity to say contradictory to what they have stated earlier that the acceptance of amount has taken place outside the room in the compound at a place which is at a distance of 33 feet from the room. If that statement is accepted, then it falsifies the claim of witnesses that when in the room, there was conversation about that dealing, the appellant Govinda was present in the room. That is much more so when both the witnesses have given candid admission as stated earlier that the appellant Govinda did not know anything about the transaction nor he knew that appellant Shankarlal had asked the complainant Tekchand to give amount to him asking him to accept the amount for appellant Shankarlal. In addition to this, whatever the panch witness Gulab (P.W.2) has stated about the conversation that had taken place on that day in the room between the appellant Shankarlal and the complainant Tekchand, has been falsified when he clinchingly admitted that he was hard of hearing. Having regard to the inconsistency at every stage, it becomes very doubtful even to accept the presence of witness Gulab with complainant either in the office or in the residential room of the appellant Shankarlal. Therefore, in this context, even as admitted by the witnesses that accused Govinda was not aware of the conversation, the claim of the prosecution that the appellant Govinda received the amount, does not stand to be probable. So this lends support to the contention of the appellant Govinda that the amount was thrusted on him by stuffing currency notes in his pocket. It has been brought on record in that regard that when the appellant Govinda was apprehended, his immediate reaction was that he shouted that he did not know for what the amount was tendered and that he did nothing. His immediate reaction on the spur of moment is justification of his defence that the amount has been thrusted in his pocket. Therefore, the claim of the prosecution that the amount was accepted by accused Govinda in a simplicitor manner, is far from truth. I have already stated about the admissions given by these two witnesses about the conduct of appellant Govinda. They have wholeheartedly stated that the appellant Govinda has no concern and that he did not know what was the amount for and that he was to receive the amount for appellant Shankarlal and that too at the behest of the appellant Shankarlal. Therefore, even factual acceptance of the amount as it is recovered by the trap party from the appellant Govinda, cannot be said to be an acceptance much less in pursuance of the demand alleged to have been made by the appellant Shankarlal and also as a bribe amount.

39. To constitute the offence with which the appellants were convicted by the trial Court, the prosecution has to prove:

(i) Demand of bribe amount as gratification, and

(ii) Acceptance of the bribe amount by accused persons.

I have given my careful thought and consideration to the evidence brought on record. I have also carefully scrutinized the evidence so far led by the prosecution. I am of the view that the quality of evidence produced on record, is not at all sufficient to satisfy judicial conscience of any adjudicating authority to record a verdict of guilt on such slender evidence. In such situation, it is very difficult to uphold the finding of guilt recorded by the trial Court. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of illegal gratification, the vital ingredient necessary to be established to procure the conviction for the offences under consideration.

40. In the result, the judgment and order of conviction and sentence cannot sustain. As such the same is required to be quashed and set aside by allowing both these appeals. Hence the order:

Order

Both the appeals are allowed.

The conviction and sentence passed by the trial Court against the appellants is quashed and set aside and the appellants are acquitted of the charges with which they were tried.

Their bail bonds shall stand canceled.

Fine amount, if paid, shall be refunded to them.

Appeals allowed.