Criminal Appeal No.152 of 2002

16th August, 2017.

Petitioner Counsel: Shri ANIL S. MARDIKAR, Ms. KSHIRSAGAR
Respondent Counsel: Shri N.B. JAWADE

Cases Cited:
Krishan Chander Vs. State of Delhi, 2016 ALL SCR (Cri) 372=(2016) 3 SCC 108 [Para 7]
Mukhtiar Singh (Since Deceased) through his L.R. Vs. State of Punjab, 2017 ALL SCR (Cri) 1270=2017(7) Scale 702 [Para 8]
A. Subair Vs. State of Kerala, 2010 ALL SCR 1115=(2009) 6 SCC 587 [Para 9]
Pannalal Damodar Rathi Vs. State of Maharashtra, 1980 SCC (Cri) 121 [Para 9]

JUDGMENT

JUDGMENT :- The appellant is aggrieved by the judgment and order dated 28-2-2002 in Special Case 1/1990, delivered by the learned Additional Sessions Judge, Akola, convicting the appellant for offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1988 (for short "the Act") and offence under Section 161 of the Indian Penal Code. The appellant is sentenced to suffer rigorous imprisonment for one year for the offence punishable under Section 5(1)(d) read with Section 5(2) of the Act. The appellant is also sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 161 of the Indian Penal Code, the sentences are, however, to run concurrently. The appellant is also sentenced to pay a fine of Rs.1,000/- each for the aforesaid offences.

2. The gist of the complaint (Exhibit 48) dated 28-12-1987 lodged by Pradeep Tumsare (P.W.2) which is the genesis of the prosecution is thus :

P.W.2 is an agriculturist and is also working as a Manager in Gajanan Video Centre, Kamargaon which is owned by Awdhutrao Tumsare, the uncle of P.W.2. Since the starting of the video parlour, P.W.2 and his uncle used to pay Hafta (a bribe installment) of Rs.150/- per month to one Shingne, the then Entertainment Duty Inspector. Shri Shingne was transferred and the appellant (hereinafter referred to as the "accused") was posted in his place. P.W.2 states in the report that the appellant is working as Entertainment Duty Inspector since one and half years prior to the lodging of the report. Initially P.W.2 and Awdhutrao paid the accused a monthly Hafta of Rs.150/-. The video parlour was closed from June 1987 to September 1987 since the validity of the licence expired. The accused visited Kamargaon in September 1987 and during the said visit told P.W.2 and Awdhutrao that he will renew the licence of the video parlour if Rs.800/- is paid to the accused and Rs.300/- is paid for challan separately. The report further alleges that in the first week of October 1987, P.W.2 and Awdhutrao went to Murtizapur and at about 11'O Clock on 2nd or 3rd October, 1987 Awdhutrao paid Rs.800/- to the accused in the open land outside the office of the Sub-Divisional Officer and received the report of renewal of of licence signed by the Sub-Divisional Officer. P.W.2 and Awdhutrao came to Akola, submitted the report in the Entertainment Section of the office of the Collector and received the licence. The report alleges that thereafter (after receiving the licence) the accused was paid monthly Hafta of Rs.300/- in October and November 1987. The report alleges that this enhancement of Hafta from Rs.150/- to Rs.300/- was when the accused went to Kamargaon and deal for renewal of licence was fixed for Rs.800/-. The report states that in consideration of the enhancement of the Hafta, the accused assured not to file prosecution against P.W.2 or his uncle.

It is alleged in the report that prior to 10-12-1987 accused came to Kamargaon alone on bicycle, demanded Hafta of Rs.300/- from P.W.2 and Awdhutrao, accused was given Rs.100/- and told that the remaining Rs.200/- will be given later on. On 20-12-1987 at 5.30 p.m., the accused came to Kamargaon, he was accompanied by one person from his house, the accused inspected the tickets, the daily collection register was not available as Awdhutrao was not present in the house and the daily collection register could not be shown to the accused. The accused and the accompanying employee demanded Rs.200/- which the complainant did not give. The complainant and Sahebrao, the younger brother of Awdhutrao, did not oblige the accused when asked to put signature/s on one blank paper. On 25-12-1987 the accused came alone to Kamargaon at 4-00p.m., Awdhutrao was present in the video parlour. At the video parlour the accused was demanding Rs.200/-, the accused checked daily collection register and put his signature. Awdhutrao told the accused that he did not have Rs.200/- and assured that he would send the money on Monday. P.W.2 also assured the accused that the balance amount of the Hafta will be given later on. Since P.W.2 and Awdhutrao were not inclined to pay the illegal gratification, the report (Exhibit 48) was lodged with the Anti Corruption Bureau on 28-12-1987.

3. The case of the prosecution as is unfolded during the course of the trial is that pursuant to the said report, the Anti Corruption Bureau summoned the panchas, made the necessary preparation for the trap, issued the standard operating procedure/protocol instructions to the complainant and panchas and the usual demonstrations were given. The raiding party left the Anti Corruption Bureau office in a Jeep and reached Murtizapur at 4.15 p.m. P.W.2 complainant and the shadow panch Sudhakar (P.W.3) left on foot to meet the accused. P.W.2 and P.W.3 went to the office of the accused located in the premises of Sub-Divisional Officer, Murtizapur. The accused allegedly asked the complainant if the remaining amount is brought, the complainant answered in the affirmative, the complainant said that the accused should take the money and the accused said he would take the money later on. The accused said that he and the complainant should have a cup of tea and again the complainant told the accused that he should accept the money so that the complainant and the shadow panch (whom the complainant allegedly introduced as a relative) are free to go. It is the case of the prosecution, that thereafter the accused parked his scooter at the scooter stand and asked the complainant and shadow panch to come with him at one Vyankatesh Touring Talkies. The prosecution contends that the demand was made and the money accepted in the Manager's office of Vyankatesh Touring Talkies. The accused is alleged to have accepted the tainted currency notes by the right hand and kept the same in the right pant pocket. Upon the arrival of the raiding party, the accused is alleged to have fled and when chased by the Anti Corruption Bureau staff to have taken out the money from the right pant pocket, to have crushed the notes and thrown them in the sweeper handcart near Veterinary Hospital. The accused was ultimately apprehended by police constables Sadashiv and Subhash. Both the hands of the accused were treated with the solution of sodium carbonate and the colour turned purple. Investigation ensued, statutory sanction was obtained from the sanctioning authority and the chargesheet presented before the learned Special Court.

4. The learned Special Judge framed the Charge (Exhibit 8), the accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial and false implication.

5. Heard Shri A.S. Mardikar, learned Senior Counsel for the appellant and Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent.

6. Shri Anil Mardikar, learned Senior Counsel, would urge that the sanction order Exhibit 113 is vitiated by manifest non-application of mind and is bad in law and indeed void. He would invite my attention to the testimony of P.W.12 Shri H.R. Kulkarni (sanctioning authority) to urge that admittedly letters/documents Exhibits 46, Exhibit 47 and Exhibit 80 were not forwarded to the sanctioning authority. The said documents have been seized by the investigating officer and produced alongwith the chargesheet. Exhibit 46 is a report dated 25-9-1987 from the accused to the Collector requesting that action under Rule 14(2) of the Bombay Entertainment Duty Rules, 1958 be initiated against Gajanan Video Centre, Kamargaon. Exhibit 47 is again a report dated 21-12-1987 submitted by the accused to the District Magistrate listing various irregularities committed by Awadhut Tumsare, the proprietor of Gajanan Video Centre, Kamargaon and recommending that the licence should not be renewed for the year 1988. Exhibit 80 is again a report submitted by the accused on 28-12-1987 recommending to the District Magistrate that necessary action for breach of conditions of the permit be initiated against Gajanan Video Centre, Kamargaon. The submission of the learned Counsel that the suppression of Exhibit 46, Exhibit 47 and Exhibit 80 from the sanctioning authority is suggestive of an unfair investigation and more importantly non-application of mind by the sanctioning authority, thus has substantial substance. In the context of the motive alleged, these documents may have persuaded the sanctioning authority to take a different view, if the documents were made available for the perusal of the sanctioning authority. The position of law that sanction is not an empty or idle formality and that it is a sacrosanct act, is too well settled for this Court to burden the judgment by making a reference to the precedents cited by the learned Senior Counsel for the appellant. It is true that sanction is a salutary protection statutorily provided to honest public servants and is not a shield for the corrupt. The juristic principle is to ensure that honest public servants are protected from the agony and humiliation of facing frivolous prosecution. In the factual matrix, the sanction is clearly vitiated in view of the suppression of Exhibit 46, Exhibit 47 and Exhibit 80 from the sanctioning authority.

7. The learned Senior Counsel Shri Anil Mardikar would also contend that neither the demand nor acceptance of illegal gratification is proved muchless beyond reasonable doubt. The learned Senior Counsel invites my attention to the judgment of the Hon'ble Supreme Court in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 : [2016 ALL SCR (Cri) 372]. The relevant paragraphs 35, 36 and 37 read thus :

"35. It is wellsettled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) o the PC Act. The same legal principle has been held by this Court in B. Jayaraj, A. Subair and P. Satyanarayan Murthy upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.

36. The relevant para 7 from B. Jayaraj case reads thus : (SCC p.58).

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.and C.M. Girish Babu v. CBI." (emphasis supplied)

37. In P. Satyanarayana Murthy, it was held by this Court as under: (SCC p.159, paras 21-23)

"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, visavis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied)

8. Equally eloquent and illuminating are the observations of the Hon'ble Apex Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702 : [2017 ALL SCR (Cri) 1270] in paragraphs 14, 15 and 25, which read thus :

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.

25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the prerequisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."

9. The learned Senior Counsel contends that a definite conclusive demand is held to be sine qua non for constituting offence punishable under the Act. If the demand is not proved, then the alleged recovery of tainted currency notes pales into insignificance, is the submission. The learned Senior Counsel further submits that even in prosecutions under the Act, the accused is presumed to be innocent till his guilt is established beyond reasonable doubt by proof of demand and acceptance of illegal gratification. This burden does not shift. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587 : [2010 ALL SCR 1115], in support of the said submission. The learned Senior Counsel would further contend that the evidence of the complainant and the shadow panch must be conclusively scrutinized since they are partisan witnesses in the sense that they are vitally interested in the success of trap. The testimony of the complainant must be treated at part with the testimony of an accomplice, is the submission. The testimony of the complainant cannot be on a better footing than that an accomplice, as is held by the Hon'ble Supreme Court in Pannalal Damodar Rathi vs. State of Maharashtra, 1980 SCC (Criminal) 121, that after the introduction of Section 165A of the Indian Penal Code, a person who offers bribe is guilty of abetment and the testimony of such person cannot be on a better footing than that of an accomplice.

10. The learned Senior Counsel is right in contending that the evidence of the complainant must be scrutinized with caution. Particularly, in the present factual matrix, the evidence must be scrutinized with utmost caution. The complainant, on his own admission, is a habitual bribe giver and he and his uncle Awadhut (P.W.11) were merrily indulging in giving monthly Hafta to the Entertainment Duty Inspectors, to avoid coercive action.

11. Complainant Pradeep is examined as P.W.2. He states that the accused was Entertainment Duty Inspector (EDI) from 1986 and prior to that one Shingne was EDI. P.W.2 claims that he was giving a monthly Hafta (bribe) of Rs.150/- to the accused to avoid prosecution. He states that from June 1987 to September 1987 the Video Centre was closed. The accused, whose report was necessary for renewal, demanded bribe of Rs.800/- to do the needful. The accused also demanded increase in the monthly Hafta from Rs.150/- to Rs.300/-. P.W.2 then states that in the month of September, he and P.W.11 met the accused, gave Rs.800/- to the accused, took the report, went to the office of the Collector, Akola, deposited Rs.500/- in the bank at Akola and obtained the renewal of the licence.

12. This version of P.W.2 is falsified by the admissions given in the cross-examination. The report (Exhibit 50) necessary for renewal of licence was as a fact received by P.W.11 Awadhut on 31-8-1987 as is evident from the endorsement at Exhibit 50 which is that of P.W.11. P.W.2 admits in the cross-examination that he did not visit the office of Sub-Divisional Officer, Murtizapur on 31-8-1987. The learned Sessions Judge has recorded a finding in paragraph 77 of the judgment impugned that the version of payment of Rs.800/- for renewal of licence is not reliable. I am inclined to come to the same conclusion. The evidence on initial demand, which is that Hafta be increased from Rs.150/- to Rs.300/-, is not at all reliable. P.W.2 initially stated that the demand was made in June or July 1987 and then immediately retracted and stated that he did not recollect the date. However, the initial demand is allegedly made when Rs.800/- was demanded for renewal of licence. I have already recorded a finding that the version of P.W.2 and P.W.11 that the accused demanded Rs.800/- for renewal of licence cannot be accepted as trustworthy. The initial demand that the Hafta (monthly bribe) amount be enhanced from Rs.150/- to Rs.300/- is allegedly made simultaneously with the demand for Rs.800/- for renewal of licence. P.W.11 gives a different version as to when and under which circumstances, the initial demand was made. He states that this initial demand was made after renewal of licence of the Video Centre. This is totally inconsistent with the version of P.W.2 who states that the demand was made before the renewal of licence. P.W.11 states in paragraph 5 of the examination-in-chief that the initial demand of enhancement of monthly Hafta (bribe amount) from Rs.150/- to Rs.300/- was made at Kamargaon. P.W.11 does not remember the month in which the demand was made. The prosecution evidence on initial demand is not at all confidence inspiring. P.W.2 has also deposed that before 10-12-1987 the accused came to Kamargaon to collect the monthly amount and demanded Rs.300/- from P.W.11. P.W.2 states that accused was paid Rs.100/- and was assured that Rs.200/- will be paid later. P.W.2 states that again on 20-12-1987 and 25-12-1987 the accused demanded the balance amount of Rs.200/-. The complainant and P.W.11 were not inclined to make payment and lodged the report with A.C.B. on 28-12-1987. P.W.2 states that before 10-12-1987 the amount of Rs.300/- was demanded from P.W.11, then again on 25-12-1987 balance amount of Rs.200/- was demanded in presence of P.W.11 when the accused visited the Video Centre. P.W.2 states that on 25-12-1987 after the accused allegedly demanded Rs.200/-, P.W.2, accused and P.W.11 all went to the residence of P.W.11 and again the accused demanded the balance amount of Rs.200/-. The evidence of P.W.2 is not corroborated in material aspects by the evidence of P.W.11. On the contrary, P.W.11 has deposed that despite payment of Rs.300/- as the monthly bribe the accused started instituting prosecutions and this annoyed P.W.11. P.W.11 does not support the version of P.W.2 on any material aspect. P.W.11 states that when the accused was instituting the 5th case, he demanded Rs.300/-. P.W.11 is totally silent in which month the demand was made.

13. I have no hesitation in coming to the conclusion that the evidence of P.W.2 and P.W.11 cannot be believed and is absolutely unreliable. The prosecution has miserably failed to establish the initial demand.

14. Let me now evaluate the evidence on the demand allegedly made by the accused on the date of the trap.

P.W.2 states that he and P.W.3 shadow panch went inside the office of the accused and met the accused who was alone. The accused asked P.W.2 and P.W.3 to sit. The accused then asked P.W.2 as to who was accompanying him and answer given by P.W.2 was that P.W.3 was his maternal uncle. P.W.2 then states that there was some discussion with the accused who asked if the old licence was annexed with the application and P.W.2 replied in the affirmative. It was then that, according to P.W.2, the accused was summoned by Sub-Divisional Officer. P.W.2 states that when the accused went to meet Sub-Divisional Officer, P.W.2 and P.W.3 were standing in a verandah. It was then that accused asked whether P.W.2 has brought the remaining amount. P.W.2 said "yes" and then the accused said that they should go to the bus stand. According to P.W.2, he insisted that since the maternal uncle was with him (reference is to P.W.3 shadow panch), the accused should accept the money then and then. However, the accused then asked P.W.2 to come near Vyankatesh Talkies and P.W.2, P.W.3 and accused went to Vyankatesh Talkies. They went near the office of the theatre. One employee was present in the office of Manager. Accused demanded daily collection report register from the said employee and then the accused demanded water, the accused, P.W.2 and P.W.3 drank water. The version of P.W.2 is that the accused took him aside near tati (a light frame of sticks) and demanded money which P.W.2 paid. There are material discrepancies and inter se contradictions between the evidence of P.W.2 and P.W.3. P.W.3 states that he and the complainant met the accused in his room, some conversation took place about the application and a query was made as to whether the old licence is annexed to the application alongwith the challan. The shadow panch (P.W.3) makes a reference to the conversion and then states that the accused was summoned by the Sub-Divisional Officer. P.W.3 then states that when the accused went to meet the Sub-Divisional Officer, P.W.2 and P.W.3 were waiting in the verandah in the office. P.W.3 then states that after the accused came back, again P.W.2 and P.W.3 entered the office of the accused. This version of the shadow panch is totally inconsistent with the version of P.W.2. According to P.W.2, after the accused came back from the office of the Sub-Divisional Officer, he met P.W.2 and P.W.3 in the verandah and it was in the verandah that the accused asked P.W.2 as to whether the remaining amount is brought. P.W.2 does not mention that after the accused came back either he or the shadow panch went inside the office of the accused. On the contrary, the version of P.W.3 shadow panch is that both he and the complainant again entered the office of the Sub-Divisional Officer and again there was some conversation about the action of the accused having annoyed and P.W.11 and the accused replied that it was his duty. The shadow panch categorically states that he did not remember that any more conversation took place between the accused and the complainant. At this juncture, the prosecutor sought permission to put a leading question to the witness, which permission was granted by the trial Court. Even in response to the leading question, which was as to whether the accused asked P.W.2 Pradeep that he brought the remaining amount, the shadow panch only states that P.W.2 said that he had brought money. P.W.3 shadow panch, despite the leading question, was not inclined to depose that the accused made any categorical or conclusive demand and all that P.W.3 states in response to the leading question is that P.W.2 told the accused that he had brought the money. The shadow panch on his own admission is not a privy to the conversation which the accused had with the complainant in the office of touring talkies where the bribe amount was allegedly lastly demanded and accepted.

15. In my opinion, the prosecution has not established a definite demand, beyond reasonable doubt.

16. The evidence of P.W.2 and P.W.3 on demand is not consistent. Indeed, P.W.3 shadow panch has not supported the prosecution on the aspect of demand. Despite the leading question put, P.W.3 has not stated that the accused demanded illegal gratification. P.W.3 has further not heard the conversation between the accused and the complainant in the office of the manager of the touring talkies, where the illegal gratification was allegedly demanded and accepted. The testimony of P.W.2 that the accused demanded money in verandah of the office is falsified by the testimony of the shadow panch. The evidence of shadow panch is absolutely silent on any such demand allegedly made by the accused in his presence. As a fact, P.W.3 does not even make a reference to any interaction between the accused and P.W.2 and P.W.3 in verandah. On the contrary, P.W.3 states that when the accused came back after meeting the Sub-Divisional Officer, P.W.2 and P.W.3 again went inside the office of the accused. Pertinently, P.W.3 deposes that at that time there was a talk between the accused and the complainant making a reference to P.W.11 being annoyed due to the actions of the accused and the accused replying that it was his job/duty. The only other evidence on the aspect of demand is the version of P.W.2 that the accused demanded money in the office of the touring talkies.

17. The evidence of P.W.2, which is not corroborated by P.W.3, must be discarded as unreliable and untrustworthy. P.W.2 and P.W.11, according to me, are habitual bribe givers and the prosecution has brought on record that P.W.11 was annoyed due to the prosecutions instituted by the accused. The shadow panch (P.W.3) also makes a reference to the conversation to the said effect.

18. The version of P.W.2 that the accused demanded bribe is not believable for more reasons than one. It has come on record that the accused instituted as many as four prosecutions against P.W.2 and P.W.11. That apart, Exhibit 80 which is a report submitted by the accused to the District Magistrate recommending that the licence should not be renewed for the year 1988 in view of the irregularities committed by P.W.11, is dated 28-12-1987, on the same day the accused was allegedly trapped. The accused not accepting the bribe amount then and there, in the comfort of his office although the complainant allegedly insisted that the amount be accepted, is not natural. It is inexplicable as to why would be the accused not accept the bribe when the same was offered, despite having a separate office. Why would be the accused ask the complainant and the shadow panch to come with him to the touring talkies and then accept the amount, therefore, is hardly explained by the over simplistic observation of the learned Additional Sessions Judge that it is the sweet choice of the accused where to accept the bribe. The prosecution has to many grey areas for this Court to hold that definite and conclusive demand is established. Since the prosecution has not proved the demand beyond reasonable doubt, the recovery of the tainted currency notes pales into insignificance and I need not delve much on the discrepancies brought to my notice as regards the alleged acceptance and recovery of the tainted currency notes and on the contention of the learned Senior Counsel that the accused has probablized the defence of thrusting on the touchstone of preponderance of probabilities.

19. The judgment and order dated 2822002 delivered by the learned Additional Sessions Judge, Akola in Special Case 1/1990 is unsustainable in law and facts and is set aside. The accused is acquitted of the offences punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1988 and Section 161 of the Indian Penal Code. Bail bond of the accused stands discharged. Fine, if any, paid by the accused be refunded to him.

The appeal is allowed accordingly.

Appeal allowed.