TaxTMI 
TaxTMI 
2023 (6) TMI 1356
X X X X Extracts X X X X
X X X X Extracts X X X X
....ership with his father. The land was purchased from one Prakash Khairnar on 10th June 1999 by registered sale deed; (b) The complainant submitted an application to Talathi of Village Bhagur through his advocate for mutation of their names. The complainant visited office of Talathi to pursue his application. Appellant was working as Talathi in the said office. The complainant requested him to take mutation of his name in the revenue record and issue 7/12 extract to that effect; (c) The complainant again visited the office of Talathi on 1st March 2000. Appellant was present in his office. Complainant requested him to take mutation of his name to the revenue record and issue 7/12 extract. Appellant demanded Rs. 500/-for mutation of his name in 7/12 extract. The complainant told him that he is having Rs. 200/-on that day. Amount of Rs. 200/-was parted to the accused. Accused then told to bring the balance amount of Rs. 300/-on 3rd Monday of the said month; (d) The complainant approached the office of Anti Corruption Bureau and lodged complaint on 3rd March 2000. PW-4 was present in the office of ACB. Complaint was recorded. Panch witnesses were called. Complainant was introduced ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e purpose for which amount was demanded. The prosecution has relied upon the documents viz. Exhibits-12,14,15. Exh.12 is the application preferred by complainant for mutation entries in the 7/12 extract in respect to the property purchased by him and his father. Exh.13 is the document relating to the property submitted along with application. Exh.14 is the sale deed executed between purchasers and seller in respect to the subject property and Exh.15 is the correction deed in respect to survey number relating to the subject property. Application Exh.12 refers to the fact that complainant had annexed sale deed and notice while applying for mutation entry in 7/12 extract. Apparently survey number appearing in the sale deed was different. Therefore correction deed was executed which was not submitted along with Exh.12. In these circumstances there is probability that application preferred by complainant was not adjudicated immediately and since complainant was aggrieved by said fact, false case has been registered against Appellant. It is further submitted that at the relevant time there was Government scheme to pursue the members of public more particularly those who attend the office....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i) State of Punjab Vs. Madan Mohan Lal Verma (2013)14-SCC-153; (iii) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede- 2009-ALL MR (Cri)-3127 (S.C); (iv) Baburao Ganpati Bhoi Vs The State of Maharashtra 2023-ALL MR (Cri)-34; (v) Shankar Pandurang Waghere Vs. The State of Maharashtra- 2022-ALL MR (Cri)-3901; (vi) Avinash Sitaram Garware Vs State of Maharashtra 2008-ALL MR (Cri)-15; (vii) Neeraj Dutta Vs. State (Govt. of NCT of Delhi) 6. Learned APP submitted that there is sufficient evidence to convict the Appellant. There is oral and documentary evidence adduced by prosecution which establishes charge against Appellant. The defense of Appellant is weak and cannot be accepted. The prosecution has examined the complainant, panch witnesses, sanctioning authority and the investigating officer. Assuming that the demand made in the month of January-2000 suffers from omission, prosecution has brought on record that there was further demand of Rs. 500/-on 1st March 2000 and again on 3rd March 2000. On the date of trap search was conducted in the office of accused and several documents were recovered which includes the correction deed which shows that correction deed was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing Plot No. 15 in June 1999. To enter name on record, he submitted application in January 2000 to Talathi. He met accused. He told him that he will be required to give Rs. 500/-to enter the name in the record. After three months he approached the accused on 1st March 2000. Accused demanded Rs. 500/-for the work. He gave Rs. 200/-and told him that he would give remaining amount of Rs. 300/-later on. He was called on Friday. He went to office of ACB in the morning on Friday and lodged the report. He provided currency notes for raid. Pre-trap procedure was completed. Raiding party went towards office of Talathi. He went to office of accused with PW-2 (Panch). He enquired about work. The accused told him that work is done and he could hand over his papers immediately. Accused asked him whether he had brought money. He answered in affirmative. Accused gave 7/12 extract and 6-D extract. He took out amount and gave it to accused. While handing over the amount, he told accused that he should reduce some amount. Accused returned Rs. 50/-. He took the note of Rs. 50/-and kept in his pocket. He gave signal to raiding party. Accused was apprehended. Post trap procedure was completed. In the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etings were held and they were called to submit their report of investment in small savings and for that purpose, the concerned officer or the employee was required to accept the amount on investment and on making investment and receiving the certificate, he was required to take xerox of the same for the purpose of record to submit along with the report and the original certificate was to be issued to the concerned person or khatedar. The accused was felicitated by him on behalf of office for taking good efforts for investment in small savings and the certificate was also issued. Office orders issued by his office were shown to him which were marked as Exh.25,26,27 and 28. Photograph of felicitation by him was marked as Exh.29. Office certificate is marked as Exh.30. Photograph of felicitation of accused by Deputy Collector was marked as Exh.31. He issued sanction on the basis of documents of investigation. At that time the factory of investment was not before him. He was sent draft sanction order along with documents of investigation. Draft may be same if he may not be required to make change, if any. 12. PW-4 Prabhakar Shelke was attached to ACB. He conducted investigation of ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udicating application Exh.12. It is relevant to note that application Exh.12 was submitted on 18th January 2000. The defense of accused is that on account of non compliance of the requirements to mutate the entries, the application was not adjudicated immediately. The delay in deciding the application of the complainant for mutation of entries in 7/12 extract had enraged him and he filed false complaint. From the circumstances on record, the said defense appears to be probable. 14. The prosecution has failed to establish the demand of illegal gratification beyond reasonable doubt. First demand according to the complainant was made in January-2000. As noted above, application was preferred on 18th January 2000. From January-2000 till March-2000, there was no follow up by PW-1. Complainant is silent from January-2000 to March-2000. It was alleged that second demand was made on 1st March 2000. It is pertinent to note that demand on January-2000 is in the nature of omission as it is not reflected in the complaint made by PW-1. The demand dated 1st March 2000 is in the form of uncorroborated testimony of complainant, as it is not supported by any corroborative evidence. The prosecution....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ency notes of Rs. 300/-which were to be handed over to the accused. Complainant and panch witnesses were clearly instructed that bribe amount was to be handed over on the demand being made by accused. According to complainant (PW-1) and panch witness (PW-2) while handing over amount to accused, the complainant requested him to reduce the bribe amount and Rs. 50/-note with anthracene powder was returned to him. The raiding party recovered the currency note of Rs. 50/-from the complainant, which he had kept in his shirt pocket. The averments recorded in the pre-trap panchanama, the fact of negotiation and handing over amount of Rs. 250/-instead of Rs. 300/-creates doubt about authenticity of the evidence of complainant. 15. The complainant has stated that he approached office of accused in January 2000. Accused told him that he will be required to give Rs. 500/-to enter the name in the record. He does not remember the date on which said talk took place. The complainant then waited till 1st March 2000. The accused again demanded money on 1st March 2000. He gave Rs. 200/-. Complainant went to office of ACB on 3rd March 2000 in the morning and not on 1st or 2nd March 2000. Apparently d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. Demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of S.20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. In the case of Avinash Sitaram Garware Vs Stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of B.Jayraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 and P.Satyanarayana Murthy Vs. District Inspector of Police, State of A.P. and another (2015)10-SCC-152 are in conflict with an earlier three Judge bench decision of Supreme Court in M.Narsinga Rao Vs. State of A.P. (2001)1-SCC-691 regarding the nature and quality of proof necessary to sustain a conviction for the offences u/s.7 and 13(1)(d) r/w Section 13(2) of P.C.Act, 1988 when the primary evidence of the complainant is unavailable. The five Judges bench considered the question by way of reference that, in the absence of complainant letting in direct evidence of demand owing to the non availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. How demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning hostile or complainant not being available on account of his death or for any other reason. By way of analysis in paragraph 57 of the decision it was observed that in the case of B.Jayaraj, the complainant did not support the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence u/s.13(1)(d)(i) and (ii) of the Act. (iii) In both the cases of (I) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence u/s.7 or Section 13(1) (d), (I) and (ii) respectively of the Act. Therefore, u/s.7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment u/s.13(1)(d) and (I) and (ii) of the Act. e) The presumption of fact with regard to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. 70. Accordingly, the question referred for consideration of this Constitution Bench is answered as under : In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution." 19. The individual cases were directed to be considered before appropriate bench. The case of Neeraj Dutta was listed before the Bench of two Judges. It was decided on 17th March 2023. Appeal was allowed and conviction was set aside. The submission on behalf of appellant was that there is no evidence of demand of illegal gratification by the applicant. Proof of demand of gratification by a public servant is a sine qua non for the offences punishable u/s.7 ad 13(1)(d) of the P.C.Act. The prosecution submitt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s be proved by other evidence such as circumstantial evidence. 18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct or oral or documentary evidence but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must b consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidenc....