Criminal Appeal No.494 of 2006

30th September, 2014

Petitioner Counsel: Shri J.M. GANDHI
Respondent Counsel: Smt. M.H. DESHMUKH, A.P.P.

Cases Cited:
Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637 [Para 4,9,10]
Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677 [Para 4,9,11]
State of Karnataka Vs. Ameer Jan, 2008 ALL SCR 64=2007 (4) Crimes 22 (SC) [Para 4,9,12]
State of Maharashtra through C.B.I. Vs. Mahesh G. Jain, 2014 ALL SCR 177=2013 AIR SCW 3174 [Para 6,14]
State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, 2009 ALL MR (Cri) 3127 (S.C.) [Para 28]

JUDGMENT

JUDGMENT :- This is an appeal preferred against the judgment and order passed on 28/8/2006 thereby convicting the appellant of the offences punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

2. Briefly stated, the facts of the case are as under.:

On 20/8/2002 the appellant was working as Peon with Nagpur Municipal Corporation and was posted to octroi check post No.10, Wadi. In the afternoon of 20/8/2002, Dilipservant of the complainantVilas, was passing by the octroi check post on a motorcycle and at that time he was carrying with him two VCDs. As it appeared to the appellant that those VCDs were new, octroi was required to be paid upon them for taking them within the limits of city of Nagpur and, therefore, the appellant stopped the motorcycle of the appellant. He enquired with Dilip and on being convinced that these two goods were liable to be levied with octroi, he detained the goods. Dilip gave information of detention of goods to the complainant and, therefore, the complainant almost immediately arrived at the octroi post. A further enquiry was made with the complainant and on being not satisfied with the answers given by the complainant, the appellant told the complainant that he would have to pay the octroi duty on the goods. The octroi duty that was to be paid by the complainant was calculated to be at Rs.2,000/-. The complainant even then tried to reason out with the appellant saying that the goods had already been sold earlier to two customers and were being taken to Nagpur for the purpose of carrying out repairs and, therefore, he was not liable to pay any octroi duty on them. This explanation was not accepted by the appellant. But, at the same time, the appellant assured to help the complainant, and therefore, he told them that if an amount of Rs.1,000/- was paid as a bribe, the goods would be released by him without any levy of octroi duty. After some negotiation, the complainant agreed to pay the amount and on 20/8/2002 he paid an amount of Rs.100/- to the appellant and agreed to pay remaining amount of Rs.900/- on the next day.

The complainant decided to not pay the further amount of bribe to the appellant and, therefore, he went to the office of the Anti Corruption Bureau on the same day i.e. on 20/8/2002 and lodged his complaint against the appellant. The complaint was reduced into writing and it was decided to lay a trap for the appellantaccused. Panch witnesses were summoned, procedure of the trap was explained to the complainant and the panch witnesses and the demonstration was also given to them.

On 21/8/2002 the complainant along with panch No.1 met the appellant and asked about release of the goods detained by him. The appellant asked the complainant as to whether he had brought the remaining bribe amount and on being given an affirmative answer, the appellant demanded payment of the same to him. Accordingly, the amount was paid to the appellant and thereafter signal was given to the members of the raiding party, who were waiting at some distance for getting the signal denoting acceptance of the bribe amount by the appellant. The members of the raiding party immediately came to the spot where the amount of bribe was allegedly accepted and apprehended the appellant. The appellant had kept the bribe amount in the pocket of his trouser. It was seized by the Investigating Officer after following the procedure. The pair of trousers worn by the appellant was seized. Panchanama was drawn, statements of witnesses were recorded and after completion of the investigation, a chargesheet was filed against the appellant. The appellant was charged with the aforestated offences to which he pleaded not guilty and claimed to be tried. He was tried by the Special Court, in accordance with law. The learned Judge of the Special Court, after considering the evidence available on record and the arguments of both the sides, found the appellant guilty of both the offences and, therefore, by his judgment and order impugned herein, convicted the appellant for the said offences and sentenced him to suffer rigorous imprisonment for one year each and also to pay fine of Rs.500/- for each of the offences with default sentence of three months. Not satisfied with the same, the appellant is before this Court in this appeal.

3. I have heard Shri Gandhi, learned Counsel for the appellant and Smt. Deshmukh, learned A.P.P. for the respondentState.I have carefully perused the impugned judgment and order and also record of the case.

4. It is submitted by the learned Counsel for the appellant that this case stands on a defective sanction and, therefore, the entire case of the prosecution must fail as being void ab initio. He submits that the sanction accorded by the General Body of the Nagpur Municipal Corporation vide its resolution No.78 (Exh.47) nowhere discloses that the facts necessary for constituting the offences alleged against the appellant were placed before the General Body, were considered by the General Body and the General Body was satisfied that a case was made out for giving of sanction as the facts placed before it indicated prima facie involvement of the appellant in the offences alleged against him. In other words, learned Counsel for the appellant further submits, there was no application of mind to the facts of the case by the General Body and as such sanction given is invalid and, therefore, on this count alone, the appellant deserves to be acquitted. In support, he placed his reliance upon the cases of (1) Madan Mohan Singh Vs. State of U.P. AIR 1954 SC 637 (2) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh - AIR 1979 SC 677, and (3) State of Karnataka Vs. Ameer Jan - 2007 (4) Crimes 22 (SC) : [2008 ALL SCR 64].

5. The learned Counsel for the appellant also submits that there has been no reliable evidence brought on record by the prosecution proving beyond reasonable doubt the making of demand of the bribe amount by the appellant and acceptance of the bribe amount by the appellant as a gratification other than legal remuneration and as a motive or reward for doing the favour to the complainant in exercise of his official functions. He also submits that there is also no evidence proving beyond reasonable doubt that the appellant has accepted any illegal gratification or pecuniary advantage for doing some official work. He points out from the evidence of the complainant Vilas (P.W.1), Dilip Wankhede (P.W.5) and panch witness Prashant Jibhkate (P.W.3) that these witnesses have stated consistently that no amount was demanded by the appellant for himself and that when he received the amount, he started preparing a form so as to give a legal protection to the goods initially detained by the employees of the Nagpur Municipal Corporation at octroi check post so that while carrying them further, no problem or obstruction from anybody would be faced by the complainant and this evidence would show that the offences punishable under Sections 7 or 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act are not proved beyond reasonable doubt by the prosecution.

6. Mrs. Deshmukh, learned A.P.P. for the State has submitted that the evidence of Manukumar Shrivastav (P.W.8), the then Commissioner of the Nagpur Municipal Corporation, would show that General Body was the competent Authority and that he had placed the proposal for according of sanction before it, which was discussed by the General Body and then only sanction was accorded by it. She further submits that the evidence of this witness sufficiently establishes the fact that General Body applied its mind to the proposal placed before it and therefore sanction is not invalid or defective. She further submits that it is not within the domain of the Court to consider the adequacy or otherwise of the material placed before the Sanctioning Authority and as long as there is some evidence indicating that the material was placed before it, it would not open to the Court to declare the sanction as invalid only on that ground. In support, she placed reliance upon the law laid down by the Hon'ble Apex Court in the case of State of Maharashtra through C.B.I. Vs. Mahesh G. Jain reported in 2013 AIR SCW 3174 : [2014 ALL SCR 177].

7. Learned A.P.P. further submits that the complainant has initially supported the prosecution case and has also stated that when the demand of bribe amount of Rs.900/- was made by the appellant, the complainant gave that amount to the appellant, which was accepted and kept in the pant pocket by the appellant. She further submits that once the acceptance is proved, the presumption would follow and it would be that the amount was accepted as an illegal gratification or as a remuneration other than legal and as a motive or reward for doing favour to the complainant in exercise of official functions. Then, she further submits, the Investigating Officer has also stated that the complaint was lodged by the complainant and amount has been duly recovered from the possession of the appellant and as there has been no probable explanation given by the appellant as to how the amount was recovered from his possession, the trial Court has rightly concluded by holding that the presumption raised against the appellant has not been rebutted by the appellant. She, therefore, supports very strongly the impugned judgment and order.

8. Upon going through the evidence brought on record by the prosecution and also considering the law relied upon by both the sides, I am of the view that there is great substance in the argument canvassed before me by the appellant and no merit in the argument of the learned Additional Public Prosecutor for the State.

9. A valid sanction is foundation of a case instituted under the provisions of the Prevention of Corruption Act and, therefore, it is the duty of the prosecution to prove beyond reasonable doubt that the sanction accorded by the competent Authority is valid in the eye of law. If the validity of the sanction is not proved, as held in the cases of Madan Mohan Singh, Mohd Iqbal Ahmed and Ameer Jan, [2008 ALL SCR 64] (supra), the prosecution case must fail.

10. For proving a sanction to be valid, it is necessary that the prosecution brings on record a proof that the Sanctioning Authority had given the sanction in reference to the facts on which the proposed prosecution was to be based and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where it is not done, the sanction would have to be found as defective and it must be enphasised that an invalid sanction cannot be considered to be conferring jurisdiction upon the Court to try the case. The Hon'ble Apex Court in the case of Madan Mohan Singh (supra) has laid down the law in this regard and the relevant observations as appearing in paragraph8 are reproduced as under.:

"The other point raised by the learned counsel for the appellant seems to us however to be of considerable substances. As the Privy Council pointed out in the case of 'Gokul Chand Dwarkadas v. The King', AIR 1948 PC 82 at p. 84 (A)the burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence. In the present case the facts constituting the offence do not appear on the face of the letter Ex. P. 10. It was consequently incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. They they did not attempt to do."

11. In the case of Mohd. Iqbal Ahmed (supra) the Hon'ble Apex Court has held that it is incumbent on the prosecution to prove that a valid sanction is granted by the Sanctioning Authority after satisfying itself that a case for sanction has been made out constituting the offence and this should be done in any of the two ways; either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence to show that facts were placed before the Sanctioning Authority and the satisfaction was arrived at by it by considering those facts. The Hon'ble Apex Court also held that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.

12. Same principle of law has been reiterated in the recent case of State of Karnataka Vs. Ameer Jan, [2008 ALL SCR 64] (supra) by the Hon'ble Apex Court. The Hon'ble Apex Court has emphasized upon the application of mind on the part of the Sanctioning Authority and this can be seen only by demonstrating that the facts necessary for constituting the alleged offences were placed before the Sanctioning Authority and were appropriately considered by it while according the sanction.

13. Now, in the light of these observations, it would be necessary for us to examine whether there was any application of mind on the part of the General Body, the competent Authority, who would accord sanction to a Class-IV employee that the appellant was at the relevant time, and whether necessary facts were placed before it for its consideration. The evidence of P.W.8 Manukumar Shrivastav is extremely important in this regard. It is seen from his evidence that he has not stated anywhere that necessary facts were placed before the members of the General Body and were considered by all the members of the General Body. He only says that he put up the proposal regarding according of sanction before the General Body in its meeting held on 27/12/2002 and the proposal was discussed by the members of the House and then the proposal was passed by an unanimous resolution No.17 according sanction of prosecution of the appellant. Except for the statement regarding putting up of the proposal, there is nothing on record indicating that all the relevant facts were placed before the General Body for its consideration. It has not been elaborated or clarified by this witness as to what kind of proposal was prepared by him, which facts did it contain and whether the copies of the proposal were given to each of the members of the General Body. He has also not stated that the facts stated in the proposal were considered by each and every member of the General Body and then only sanction by unanimous resolution was accorded by it. It is obvious that there is no proof brought on record by the prosecution showing that all the relevant facts necessary to prima facie make out the offences as alleged against the appellant were placed before the General Body and, therefore, it has to be held that there was no application of mind on the part of the General Body in according sanction.

14. In the case of State of Maharashtra Vs. Mahesh G. Jain, [2014 ALL SCR 177] (supra) also the Hon'ble Apex Court has held that the authority must be primafacie satisfied that the facts alleged constitute offence. It is also held in this case that the Court cannot go into the question of adequacy of material placed before the Sanctioning Authority. In the instant case, there is absolutely no proof brought on record by the prosecution that relevant facts were placed before the Sanctioning Authority and if that proof is not there on record, there would be no question of dealing with adequacy or inadequacy of the material placed before the Sanctioning Authority. Therefore, this case does not render any assistance to the prosecution case and rather it appears to be helpful to the case of the appellant.

15. In view of the above discussion, I find that in this case there has been no valid sanction given by the competent Authority i.e. the General Body of the Nagpur Municipal Corporation and if that is so, the whole case of the prosecution must fail. In the absence of any valid sanction of the Competent Authority, the Court would have no authority in law to prosecute and try the appellant for the offences punishable under Section 7 and 13 (2) read with Section 13(1) (d) of the Prevention of Corruption Act and on this count itself, as rightly submitted by the learned Counsel for the appellant, the appellant would be entitled to be acquitted. It is seen from the impugned judgment that this aspect of the case, which is material and which goes to the very foundation of the prosecution case, has not been considered at all by the learned Special Judge and, therefore, the impugned judgment and order deserve to be quashed and set aside.

16. Assuming just for the sake of argument, that there was a valid sanction accorded by the competent Authority, still the prosecution case appears to have doubtful nature. This can be clearly seen from the evidence of complainant P.W.1 Vilas (Exh.7) and panch No.1 P.W.3 Prashant (Exh.19).

17. Although, the complaint was made by P.W.1 Vilas against the appellant alleging that he demanded bribe amount of Rs.1,000/- to not levy octroi on the goods seized by him and release them without payment of octroi, the complainant P.W.1 Vilas as well as panch No.1 P.W.3 Prashant do not support the allegations made in the complaint. P.W. 1 Vilas was declared hostile witness and even his extensive cross examination taken on behalf of prosecution by the learned A.P.P. did not yield any favourable results for the prosecution case. In his cross examination PW 1Vilas maintained his stand that on 20/8/2002 an amount of Rs.100/- paid to the appellant was paid, not by him, but by his employees and on 21/8/2006, it were the employees of the Cor poration who had directed him to give balance amount of Rs.900/- to the appellant and that the appellant demanded the payment of the said amount as per the directions of 23 other employees of the Corporation. In his crossexamination taken on behalf of the appellant also, the complainant maintained the same version by saying that other employees had asked him if he had brought the amount. He also stated that after the payment was made by him, the process of preparing the form was commenced and the employees of the Nagpur Municipal Corporation told him that they were giving duly prepared form to him so that while taking away the goods, he would not face any difficulty, in case the goods were checked by flying squad of the Corporation. Even P.W.3 Prashant, Panch No.1 has admitted in his crossexamination taken on behalf of the appellant that the appellant never demanded any amount as bribe and that the appellant had told the Police Officer that he did not commit any wrong and he was only filling up the form.

18. Such evidence of the complainant as well as Panch No.1, an independent witness, creates a doubt about the demand made by the appellant as an illegal remuneration for showing favour to the appellant. The admissions given by both these witnesses create a rea sonable probability that the amount of Rs.900/- may have been accepted by the appellant as octroi duty and that was the reason why necessary form was being filled up by the appellant after receipt of the amount of Rs.900/- from the complainant. No doubt, tainted currency notes totalling to an amount of Rs.900/- have been recovered from the possession of the appellant and apparently it would show that the appellant had accepted the amount of Rs.900/- described by the prosecution as the bribe. There is also presumption under Section 20 of the Prevention of Corruption Act, 1988 that once acceptance is proved, it would be presumed that the amount is accepted as an illegal gratification or illegal remuneration or towards pecuniary advantage for doing the official work. But this presumption is rebuttable and it stands rebutted by the facts brought on record through the admissions given by the material witnesses of the prosecution, which are discussed earlier. The presumption stands rebutted in a reasonable manner for the reason that the possibility that the amount of Rs.900/- may have been demanded by other employees of the Corporation and the appellant, who was merely a Peon, having acted merely on the directions given by other employees, is not ruled out. The appellant was also directed to prepare the necessary form and the appellant may not have been actually aware of what went on between the complainant and the other employees. When the possibilities of the demand not being made by the appellant and the appellant receiving the amount under an impression that it was for legal purpose of issuing the necessary form have not been ruled out, it has to be said that the presumption under Section 20 is rebutted by the law of probability. In any case, this is a case wherein two views are possible and so the one that favours the accused, as held in the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede- 2009 ALL MR (Cri) 3127 (S.C.), must prevail. Therefore, I am of the view that this is a fit case for giving benefit of doubt to the appellant on merits of the case as well. So, the appellant deserves to be acquitted of the offences with which he has been charged herein by allowing this appeal.

In the result, the impugned judgment and order are hereby quashed and set aside.

The appellant is acquitted of the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

His bail bonds stand discharged.

Fine amount paid by the appellant be refunded to the appellant.

Ordered accordingly.