THE STATE OF MAHARASHTRA  vs.  SHASHIKANT DNYANU JADHAV

2024:BHC-AS:34045
APEAL-899-2003.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.899 OF 2003
The State of Maharashtra ...Appellant
Versus
Shri Shashikant Dnyanu Jadhav
Age : Adult, Occupation : Police Constable,
B. No. 1785, Borgaon Police Station,
...Respondent
Taluka : Borgaon, District : Satara.
*

*
CORAM : S. M. MODAK, J.
th
RESERVED ON : 12 JULY 2024
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PRONOUNCED ON : 26 AUGUST 2024
JUDGMENT:-
1. Constitutional bench of Hon’ble Supreme Court in case of
1
Neeraj Dutta v/s. State (Govt. of N.C.T. of Delhi ) held “ in a case
under the provisions of the Prevention of Corruption Act the Court
can base its conviction on circumstantial evidence, even though direct
1
2023 SCC OnLine SC 280
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evidence is not available” . So to say, if for any reason, the de-facto
Complainant is not available for giving evidence, Court can certainly
look for circumstantial evidence. It may be in the form of evidence of
trap witness or any other witness. The de-facto Complainant may be
dead or not available or has not supported the prosecution case. The
reference was made to larger bench in view of divergence of opinion
amongst various benches of the Hon’ble Supreme Court. After taking
conspectus of the decision, certain principles were laid down.
Following are relevant for our consideration:-
2
(a) Proof of demand and acceptance is sine qua non for an
offence under Section 7 and Section 13(1)(d)(i) and (ii) of the
3
Prevention of Corruption Act, 1988 .
(b) First demand has to be proved and then subsequent
acceptance has to be proved.
(c) Demand and acceptance can be proved by direct oral evidence
and in absence – by circumstantial evidence.
(d) If illegal gratification is paid without earlier demand, it is a
case of acceptance under Section 7 of the Prevention of
Corruption Act.
2
An essential condition.
3
Henceforth, “the PC Act”.
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(e) If there is a demand and then acceptance, it is a case of
obtainment under Section 13(1)(d)(i) and (ii) of the
Prevention of Corruption Act.
(f) Presumption under Section 20 can be drawn only when
foundational facts of demand and acceptance are proved.
(g) Even if the Complainant dies, not available or turned hostile,
offence can be proved by examining other witnesses or by
circumstantial evidence or through documents.
2. According to learned APP in this case, even though the de-facto
Complainant has turned hostile, still there is evidence of PW No. 2-
panch witness and it is sufficient. According to him, the trial Court,
while acquitting the Respondent, has not at all referred the evidence of
panch witness. And this is total dereliction of duty. He is right.
3. I have read the impugned judgment. Nowhere the trial Court has
commented on the evidence of panch witness. It is true when the trial
Court passed the impugned judgment, the observations in Neeraj
Dutta (cited supra) were not in force. But it does not mean that, the
trial Court should overlook a piece of evidence.
4. In such cases, the panch witness has an important role to play.
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Generally raids are conducted in the presence of independent witness.
Trial Court has failed to consider this evidence. Does it mean that the
matter should be remanded ? According to learned Advocate
Mr.Rananaware, this Court being last fact finding court can consider
evidence of panch witness and even if considered, it will not result into
reversal of the judgment.
5. The prosecution case needs to be stated.
Prosecution case
6. The de-facto Complainant Mahendra Gujar resident of village-
Bhondavade, District – Satara owns a tempo. He purchased it from one
Raghurath Nikam. Yet Shri Gujar has not paid the entire consideration
and that is why it is not transferred in his name. Shri.Gujar has
appointed Shri.Raghunath Shinde to drive the tempo.
7. The corruption offence is outcome of plying the tempo in limits
of Borgaon Police Station and carrying passengers. The driver Shinde
was obstructed by Police constable Zanjurne on the instructions of
Police Head Constable Shri Sandbhor. Neither of them were charge-
sheeted. Shri Gujar went to Borgaon Police Station on 29/03/1995 and
met head constable Sandbhor. Mr.Sandbhor first took Mr. Gujar to
task and pressurized him to pay instantly Rs. 1,000/-. This is the first
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demand. But unfortunately, Shri.Sandbhor though named as an
accused in FIR dated 30/04/1995 (filed by PI Mane after the trap), was
dropped from the charge-sheet.
8. Mr.Gujar was hesitant in paying the bribe and his driver Shinde
was prosecuted for unlawful carrying passengers. He was fined by
Satara Magistrate for Rs. 2,000/-. He paid Rs. 500/-. Still his worries
were not over. Police Head Constable Sandhor insisted for payment of
entire fine amount, prior to release of tempo.
9. Mr.Gujar and Mr.Shinde paid remaining amount of fine and
again went to meet Police Head Constable Sandhor. He again
reiterated demand for Rs.1500/-. Mr.Gujar and Mr.Shinde were
helpless. On 15/04/1995, Mr.Gujar went to Police station and met Mr.
Sandbhor and prayed leniency. Mr.Sandbhor was adamant on payment
of Rs. 1500/-. At that time, present Respondent-Police Constable
Jadhav entered on the scene. He was called by Mr.Sandbhor. He
instructed Mr.Jadhav “ to accept Rs. 1500/- from Mr.Gujar on
Wednesday if he will not be present ”. PC Jadhav was the loyal
lieutenant of Police Head Constable Sandhor. He again reiterated the
instructions.
10. Mr.Gujar realized, he will not get license and RC book unless
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money is paid. At that time, Mr.Gujar was an ardent follower of law.
He has a respect for law. But unfortunately, when it comes to giving of
evidence, Mr.Gujar realised he will not be benefited and till that time
he has cooled down. Mr.Gujar approached Anti Corruption Bureau
Satara and taken their help to nab the culprits. PI Mane has recorded
his complaint on 18/04/1995.
About trap
11. On this background, trap was laid on 19/4/1995. Mr.Sandbhor
was not trapped. But it was PC Jadhav. Though the team went to
village Borgaon, they were told that Mr.Jadhav had gone to Satara.
There are two versions about place of trap. They were found in the
evidence of Mr.Gujar PW No.1 and Panch witness PW No. 2. PW 1
took several somersaults in his evidence. As stated above, there is
demand earlier to trap and at the time of trap.
12. PW 4-PI Mane recorded statement of PW No.1 - Gujar on
18/04/1995 (Exhibit-47). There is complaint against Mr.Sandbhor and
reference of Mr.Zanzurne and Mr.Jadhav. However, only Mr.Jadhav
was found at the time of trap. However, PI Mane lodged complaint on
20/04/1995 against Mr.Sandbhor and Mr.Jadhav. Interestingly, only
Mr.Jadhav is charge-sheeted for committing an offence under Section
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7, 13(1)(d) read with Section 13 (2) of the Prevention of Corruption
Act.
Evidence of demand earlier to trap
13. It seems that Mr.Gujar is a very clever guy. He has made up his
mind prior to giving of evidence. He deposed every fact about
challenging his driver, fine imposed by the Court, its payment.
However, when it comes to involvement of Police Head Constable
Sandbhor, he has disowned his version in his complaint. As per his
statement, he has stick up to the following facts from his complaint:-
(a) Introductory fact about purchase of tempo, consideration,
plying of tempo by his driver. Mr.Shinde on a route Rajwada-
Asangaon-Pilani.
(b) Detaining of tempo by PSI Sandbhor at Borgaon Police
Station and going to Borgaon Police Station.
(c) Filing of a case against driver Shinde for illegally carrying 45
passengers and Court fined him Rs.2,000/-. An amount of
Rs. 500/- was deposited and then Rs.1500/-.
d) Photocopy of receipt was handed over not to Sandbhor but to
Zanzurne.
14. From the statement. He has not deposed following facts :
(a) He has not met Mr.Sandbhor in the police station and Mr.
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Sandbhor has not demanded Rs.1,000/- for illegally
carrying passengers.
(b) Mr.Gujar never expressed “ availability of Rs. 250/- only
and assurance to pay balance later on ”.
(c) Mr.Sandbhor insisted to pay Rs. 1,000/- then and there
only and he “ gave instructions to Zanzure to challan him
for illegal carrying of passengers ”.
(d) “He never gave receipt of Rs.500/- to PSI Sandbhor and he
was not ready to release the vehicle unless and until Rs.
1,500/- is paid.”
(e) “On the say of Mr.Sandbhor, Shri.Shinde driver was
handed over RC Book and license to him.”
(f) “Mr.Sandbhor demanded Rs. 1,500/- (Rs. 300 per day for
5 days) and then take back RC book and license”.
(g) “Mr.Gujar and one Shri.Shaikh visited Borgaon Police
Station on 15/04/1995 and sought time of 4 days for
payment of Rs. 1,500/- and Mr. Sandbhor directed him to
bring that amount on 19/04/1995.”
(h) “Mr.Sandbhor instructed Mr.Jadhav present Respondent to
accept the amount of Rs. 1,500/- on 19/04/1995 , if he will
not be present in the Police Station”.
(i) “Mr.Sandbhor has not specifically instructed -RC book and
license will not be returned unless that amount of Rs.
1,500/- will be paid”.
(j) “Mr.Gujar has not given any assurance to present
Respondent to come with amount of Rs. 1,500/- on
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19/04/1995 and then left Police station.”
About not sanctioning Mr.Sandbhor
15. So, Mr.Gujar has not deposed those facts which were implicating
Mr.Sandbhor. Conveniently, he has omitted them. Prosecution has not
charge-sheeted Mr.Sandbhor. However, it does not mean that the
witnesses cannot depose against such a person. Witnesses are not aware
of the formalities of sanction. If PW No.1 could have deposed against
Mr.Sandbhor (on the basis of statement), then trial Court was certainly
empowered to issue directions to the investigating agency. But neither
the investigating agency nor Mr.Gujar were in frame of mind to
charge-sheet him/to depose facts against him. There is much emphasis
by Mr.Rananaware on the conduct of the Anti Corruption Bureau in
not charge-sheeting Mr.Sandbhor. He invited my attention to a report
dated 29/02/1996 sent by PI ACB to the Special Judge, ACB. There is
a request to discharge Police Head Constable Sandbhor as no sufficient
evidence was found.
16. According to Mr.Rananaware, this is partisan approach of Anti
Corruption Bureau when Mr.Gujar has specifically lodged complaint to
Anti Corruption Bureau about demand made by Mr.Sandbhor, Anti
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Corruption Bureau was not justified in discharging him. Because
according to him even a person can be charged for demand (without
acceptance).
Provisions of PC Act
17. It is true, as per the PC Act, Public Servant can be prosecuted for
several offences. Two of them are Sections 7 and 13. The ingredients of
both the Sections are different. The following are the ingredients for an
offence under Section 7:-
(i) Whoever either
accepts or
obtains or
agrees to accept or
attempts to obtain
(ii) any gratification.
(iii) for official act.
Then it is punishable under Section 7 of the Prevention of
Corruption Act. Whereas as per Section 13 of the Prevention of
Corruption Act, there are five acts which are punishable. In clause
(a) and (b) of Sub-Section (1) of Section 13, both the words “accept
or obtain” are used. But those clauses are applicable only when
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there is habitual act. Whereas the word ‘habitual’ is not used in
clauses (c), (d) and (e) of sub-Section 1 of Section 13 of PC Act.
Clause (d) is relevant. In that clause, there are three sub-clauses. In
all of them, only the word ‘ obtain ’ is used.
Meaning of the word ‘accept ’ and ‘ obtain ’
18. Is there any difference in between the word “ accept ” and word
“ obtain ”. Dictionary meaning of the word “ accept ” is :--
“to receive something offered willingly”.
Whereas meaning of the word “ obtain ” is :--
“ to gain or attain usually by planned action or effort ”.
19. There was an occasion for the Hon’ble Supreme Court to
consider the difference in the meaning of these two words in case of
4
C.K. Damodaran Vs. Government of India . In case of obtainment, the
initiative vests in the person who receives and in that context a
demand/request from him will be a primary requisite for an offence
under Section 5 (1)(d) of the Act (old)/new section 13(1)(d)(i) and (ii).
20. On the other hand, for offence under Section 7, both acceptance
and obtainment are covered. The scope is wide. Even “ agreeing to
accept or attempting to obtain ” is punishable under Section 7 of PC
Act. So if any Public Servant attempt to obtain means only
4
(1997) 9 SCC 477
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‘ makes a demand of illegal gratification ’ (without being delivered), it
will fall under Section 7 of PC Act. So, under Section 7, demand for
money is covered. So also, money accepted with demand (obtainment)
or without demand (acceptance) is covered. Whereas, under Section
13(1)(d), only money accepted in pursuance to demand is covered.
Facts
21. So if it is the law, when the de-facto Complainant complains that
Shri.Sandbhor insisted payment of money (agrees to obtain), the Anti
Corruption Bureau ought to have charge sheeted him. But their action
is totally unjustified. They have abdicated role of a Court on
themselves and exonerated Shri.Sandbhor. During trial, Mr.Gujar has
not deposed about the involvement of Mr.Sandbhor. The issue is,
whether the present Respondent can be benefited. This is breach of
equality enshrined under Article 14 of the Constitution. If two persons
have breached the provisions of the Prevention of Corruption Act,
both are to be dealt with equally. But the prime witness Mr.Gujar has
not deposed about the involvement of Mr.Sandbhor.
22. The Respondent will not get any benefit. His case has to be dealt
with on the basis of evidence against him.
Evidence of demand at the time of trap
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23. PW No.1 - Gujar has admitted about lodging of complaint with
th
the Office of Anti Corruption Bureau on 18 April 1995. Even he
admits of visiting Anti Corruption Bureau Office on next date along
with currency notes to the tune of Rs.1500/-. He admits everything
about happening of events in the Office. The facts deposed by him
after they left Anti Corruption Bureau Office are as follows:-
(a) First they (PW No. 1 and PW No. 2) went to Borgaonn
Police Station and called Mr.Zanzure. Mr.Zanzurne told
them Mr.Jadhav-Respondent had gone to Satara for election
duty.
(b) Then all went to Satara and met Mr.Jadhav in his house.
PW No. 1- Gujar told to return documents Mr.Jadhav told
them to come to Borgaon.
(c) All again met at Borgaon and Mr.Jadhav enquired about the
amount. Mr.Gujar requested him to return the papers and
accept amount.
(d) Mr.Gujar gave the money and gave the signal PW No. 2
was present. Mr.Jadhav was caught by PI Shri Mane.
(e) He was cautious enough not to take the name of Sandbhor.
(f) Even he has not supported the prosecution case. Mr.Gujar
was cross-examined. He gave answers favourable to the
prosecution case. He admitted following facts:-
(i) Mr.Jadhav told him to give the amount if brought by him
and Mr.Gujar gave the amount of Rs.1,500/-.
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(ii) Mr.Jadhav counted the amount and kept it in his shirt
pocket.
(iii) Mr.Jadhav assured to give RC book and license afterwards.
They were kept in dicky of motorcycle.
Mr.Gujar deposed above facts, after Learned APP put suggestive
questions. He was declared hostile at subsequent stage (Para No.9).
Evidence Act prohibits putting questions in which answers are
suggested. It is permissible only when the witness is not supporting and
that too after obtaining permission under the provisions of Section 154
of the Evidence Act. This procedure is not followed.
24. According to learned APP, Mr.Gujar has candidly deposed about
“demand made by Respondent and handing over the money”. Whereas
according to learned Advocate Mr.Rananaware, even this theory is not
reliable and there are different answers given during cross-examination.
25. The trial Court disbelieved the evidence of Mr.Gujar. During
cross-examination on behalf of the accused, PW No. 1 gave following
answers:-
(a) Mr.Jadhav was not present when an amount of Rs.1500/-
was demanded.
(b) Witness was not having any connection with Mr.Jadhav till
the date of trap.
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(c) when witness went to the house of Mr.Jadhav at Satara, he
was sleeping.
(d) At Satara, initially witness tried to search Mr.Zanzure. He
was not found.
(e) That is how witness paid the amount to Mr.Jadhav. But Mr.
Jadhav inquired as to how he is concerned with the amount.
(f) witness told “he had already talked to Mr.Zanzurne and
instructed Mr.Jadhav to pay the amount to Mr.Zanzurne
and is concerned with private transaction of payment of
money”.
26. If we read the evidence of PW No. 1 Mr.Gujar in its entirety, we
may find:-
(a) he has not deposed anything about interaction with Mr.
Sandbhor.
(b) Even he has not deposed about instructions given by
Mr.Sandbhor to witness to pay the amount to Mr.Jadhav.
(c) About demand at the time of trap and acceptance, there are
two versions:- One when learned APP cross-examined
Mr.Gujar and second when accused cross-examined him.
(d) We have to read them together. We can infer that money is
paid and accepted. But when the answers given by Mr.Gujar
when accused cross-examined him are considered, the
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evidentiary value of the answers given by him when he was
cross examined by learned APP got diminished.
27. So we cannot trust such witness. His conduct is not
reprehensible. First he exonerated Sandbhor and tried to give some
favourable answers to the prosecution and then again took u turn. So
witness cannot be trusted. The law on the point of “ hostile witness is
well settled ”.
On the point of hostile witnesses
28. The law is settled. Even if the witness called by the prosecution
does not support their case, his evidence cannot be discarded in its
entirety. The Court has to bifurcate the evidence into two parts. The
part which supports the prosecution case and the part which does not
support. After doing that exercise, the Court has to balance those two
parts and then, come to a conclusion, which part can be used and its
evidentiary value. The law on the point of reliability of witness is also
well settled. The Hon’ble Supreme Court has categorised the witnesses
into three categories. They are:-
(a) A witness who is only unreliable, his evidence is of no
value.
(b) The witness who is partly reliable and partly unreliable, his
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evidence can be considered to certain extent and
(c) A witness who is only reliable, conviction can be based on
evidence of said witness.
If these principles are applied in this case, we can only say that
Mr.Gujar is totally unreliable witness. He cannot be believed at all. On
this background, the facts deposited by panch witness PW No.2 –
Ashok Bavane needs to be considered.
Evidence of panch witness
29. Said evidence consists of parts. First, the evidence about
apprising two panchas about the facts stated by de-facto Complainant
in his statement. Second part consists of completing the pre-trap
formalities including giving instructions, what is to be done at the time
of actual trap, production of tainted currency notes by the de-facto
Complainant and demonstration about the anthracene powder and
recording pre-trap panchnama. So, his evidence is material on the point
of compliance of the procedure in the Police Station and third part is,
about happening of events at the time of trap. Third part is more
important.
30. This witness was working as a Junior Clerk in Treasury Office –
Satara. Police Inspector – Mane secured his presence. He visited the
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th
Office of Anti Corruption Bureau on 19 April 1995. They have left
for Borgaon in a Government vehicle. The facts deposed by him are as
follows:-
(a) They stopped the vehicle near pan stall and he along with
Mr.Gujar went to Borgaon Police Station. They met
Mr.Zanzurne. Mr.Jadhav had gone to Tahsildar Office –
Satara for work of election as told to them by Mr.Zanzurne.
(b) Then, all went to Tahsildar Office – Satara and stopped
near gate of that Office. (This is a deviation from what
Mr.Gujar has deposed “all went to the house of Mr.Jadhav ”
is the fact stated by Mr.Gujar ).
(c) Mr.Jadhav came there on motorcycle and inquired about
the amount as demanded by PSI – Sandbhor. Mr.Jadhav
asked them to follow him to Borgaon. Mr.Gujar told him
that the amount has been brought. All went to Borgaon.
(d) Vehicle was stopped near Borgaon Police Station and
Mr.Gujar and panch went near telephone booth. After
seeing Mr.Gujar, Jadhav came out of booth. Again
Mr.Jadhav inquired about the amount as instructed by PSI
Sandbhor – , Mr.Gujar replied in the positive. Then, the
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amount of Rs.1,500/- was given by Mr.Gujar and accepted
Mr.Jadhav by and then a signal was given .
(e) The dicky of motorcycle of the Accused was checked and
his uniform and R.C., book of four wheeler No.M22552
was found.
31. During the course of cross-examination, Mr.Jadhav was put only
with the denial suggestions. He is not aware about the owner of the
motorcycle from whose dickey, R.C.,book was taken out. Vehicle was
stopped one kilometer ahead of Borgaon village. All these answers
need to be scrutinised in order to ascertain whether this evidence is
sufficient to convict the Respondent on the basis of observations in
case of Neeraj Dutta (cited supra ).
32. The evidence of PI – Mane depicts the facts relating to recording
the statement of Mr.Gujar earlier to trap, completion of pre-trap
formalities and the events that occurred after they left the Office to
Borgaon Police Station and then to Tahsildar Office – Satara and then,
returning back to Borgaon. It further depicts about catching hold
Mr.Gujar, finding the tainted currency notes and completion of trap
formalities and lodging of FIR. During the course of cross-
examination, he admits enquiry was not made about the ownership of
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two-wheeler bullet wherein R.C., book was found.
The evidence on the point of sanction
33. The sanction was given by the Superintendent of Police – Satara
as the Respondent was working as Police Constable. This was granted
only against Mr.Jadhav. There was no challenge to the Authority of the
Superintendent of Police to grant sanction. Though certain questions
are put about the procedure followed by him while processing the
proposal for sanction, there is no dent to the prosecution case.
Findings by the trial Court
34. The sanction was granted for the offences punishable under
Sections 7, 13(1)(d) read with 13(2) of the PC Act. (Page No.154). The
charge was also framed for those sections. (Page No.40). The trial
Court discussed about the burden on the Accused to explain how the
tainted currency notes were found with him. Certain judgments were
also discussed in Para Nos.48 and 49. The trial Court has laid emphasis
on not giving sanction to prosecute PSI–Sandbhor. (Para No.51). It
reflects, the trial Court has kept the case for framing of charge against
Mr.Sandbhor. (Para No.52). Even, a submission was made by learned
APP to obtain a sanction against PSI – Sandbhor. However, it reveals
that it was not obtained inspite of giving ample opportunity.
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35. It was submitted to the trial Court that the Sanctioning
Authority has not granted sanction against PSI – Sandbhor. That is
why, a charge is not framed against him. (Para No.53). In Para No.56,
the trial Court has given importance to the answers given by Mr.Gujar
about interaction with Mr.Jadhav. When amount is offered, Mr.Jadhav
asked how he is concerned with the amount. The trial Court expressed
inability to proceed against Mr.Jadhav for the reason “Mr.Jadhav
accepted the amount of bribe for and on behalf of Mr.Sandbhor”. The
trial Court also given due weightage to “withholding of papers by PSI –
Sandbhor”. In other words, the trial Court want to suggest Mr.Jadhav is
not having any official work with him belonging to Mr.Gujar. (Para
No.57). Finally, the trial Court accepted the version given by Mr.Gujar
when he was cross-examined on behalf of the Accused. Mr.Jadhav
shown his ignorance about the amount offered by Mr.Gujar. The trial
Court considered the explanation as probable. (Para Nos.59 and 60).
The Investigating Agency fails to investigate the owner of the
motorcycle in which, R.C., book was found.
Conclusion
36. It is not the case of prosecution that Mr.Jadhav was involved in
demanding the bribe at the beginning. The amount was demanded by
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Mr.Sandbhor. Mr.Jadhav came on the scene later on. His involvement
is at two stages. They are:-
(a) When Mr.Sandbhor instructed Mr.Gujar to pay the amount
th
to Mr.Jadhav on 19 April 1995 if he will not be available.
Admittedly, it is not the case of prosecution that at that time,
even though Mr.Jadhav was present, he made a demand and
which will fall within a purview of Section 7 of the PC Act.
(b) When Mr.Gurav and PW No.2 went to Satara (at his house /
in the Tahsildar Office – Satara), then to Borgaon and
Mr.Jadhav accepted the amount of Rs.1500/- outside the
STD booth.
37. About these events, Mr.Jadhav inquired with Mr.Gujar whether
the amount is brought as instructed by PSI – Sandbhor and finally, he
accepted it outside the STD booth. In respect of both these events, we
have got evidence of Mr.Bavane and the evidence of PI – Mane by way
of corroboration. Here, the principles laid down in Neeraj Datta case
(cited supra) comes into picture.
38. At this stage, it can very well be said that the Officials of ACB
have favoured PSI – Sandbhor by not granting sanction. It is also true
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that when the question of giving evidence had arisen, Mr.Gujar has
taken U-turn and totally exonerated Mr.Sandbhor. Against Jadhav, he
did not depose the facts. When APP cross-examined him, he gave
answers favourable to the prosecution and again when Accused cross-
examined him, he had deposed the theory of expressing ignorance
while accepting the amount by Mr.Jadhav. As said above, he is totally
unreliable witness. The issue is, whether the evidence of panch witness
and PI – Mane can be discarded. There is no single observation by the
trial Court on this aspect.
39. The observations in the judgments relied upon by the
Respondent need to be considered. In case of P. Satyanarayana Murthy
5
v/s. District Inspector of Police, State of Andhra Pradesh and Another ,
the Complainant – S. Jagan Mohan Reddy has expired prior to giving
evidence (Para 4). PW No.1 – S. Udaya Bhaskar was the trap witness
(Para 15). The Supreme Court set aside the conviction and found the
evidence of PW No.1 falls short to prove the demand. (Para 24).
6
40. In case of B. Jayaraj v/s. State of Andhra Pradesh , PW No.2 –
Complainant K. Venkataiah has not supported the prosecution case.
The evidence of panch witness, PW No.1 was accepted. (Para 6). The
5
(2015) 10 Supreme Court Cases 152
6
(2014) 13 Supreme Court Cases 55
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Supreme Court has not believed the evidence of trap panch and set
aside the conviction. (Para 8).
7
41. In case of State of Kerala and Another v/s. C.P. Rao , the
Complainant was not examined. (Para 7). The conviction was set aside
by the Hon’ble Supreme Court. It is very well true. The Hon’ble
Supreme Court decided the matter Neeraj Dutta v/s. State (Govt. of
8
N.C.T. of Delhi) after the observations by the Constitutional Bench.
The Complainant Ravijit Singh died before the commencement of the
trial. (Para 2). There was conviction under Sections 7, 13(1)(d) read
with Section 13(2) of the PC Act. The Supreme Court found the
evidence of panch witness unsatisfactory. Because, mere demand of
money is not sufficient. But, it must be by way of an illegal
gratification. If it is not there, the provisions of Section 7 are not
satisfied. The conviction was set aside. (Paras 17, 18 and 20).
Facts of this case
42. PW No.2 – panch witness has referred about demand by
Mr.Jadhav. What he said “ Mr.Jadhav asked about the amount
demanded by PSI – Jadhav ”. Now, can it be an illegal gratification. It
cannot be for two reasons:-
7
(2011) 6 Supreme Court Cases 450
8
2023 SCC OnLine SC 280
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(a) First, PW No.2 never deposes “Mr.Jadhav inquired with
Mr.Gujar whether amount demanded by him is brought”.
(b) PW No.2 never says why for the amount is demanded that is
purpose.
If it is absent, demand cannot be called as illegal gratification.
(Mr.Gujar has described the payment of money was towards some
private transactions between Mr.Zanzurne and him. This is already
disbelieved).
43. If considered from the above perspective, even if evidence of PW
No.2 is appreciated, it falls short to prove an offence under Section 7 of
the PC Act. Consequently, offence under Section 13(1)(d) of PC Act is
also not proved. The prosecution case can only be considered for the
purpose of acceptance. But, it is meaningless without proof of demand.
The observations of the Constitutional Bench is not useful to the
prosecution. Learned APP Shri.Dedhia with all his experience and
forcefulness tried to convince me so as to interfere in the judgment of
acquittal. I have also perused the evidence very minutely. That is why, I
have reproduced the evidence of PW No.1 and PW No.2 in detail. But,
on dissection, I could not find favour with the prosecution. The
presumption under Section 20 of the PC Act comes into play only
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when foundational facts are proved and not otherwise. There is no
merit in the Appeal. Consequently, it is dismissed.
[S. M. MODAK, J.]
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