9911796707
TMI Blog2023 (8) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said property. Accused being public servant demanded illegal gratification of Rs.2,000/-. On 24-07-2009 in between 12.25 PM to 1.30 PM the accused at his office in Santi-Bastwad village demanded and accepted illegal gratification of Rs.2,000/- other than legal remuneration for discharging his official duty for mutating the name of complainant. It is further alleged that accused by abusing his position as public servant in order to discharge his duty obtained pecuniary advantage to the tune of Rs.2,000/- for himself and thereby committed criminal misconduct. On these allegations, the Investigating Officer after completion of investigation filed the charge sheet. 4. In response to summons, accused appeared through counsel. The Trial Court on being prima facie satisfied of the charge sheet material framed charges against accused for the offences alleged against him. Accused pleaded not guilty and claim to be tried. Prosecution to prove the allegations made against accused relied on the evidence of PW-1 to 11 and the documents Ex.P.1 to 35, so also got identified MO. Nos.1 to 9. 5. On closure of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C. ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for mutating the name of complainant pursuant to the decree passed by Prl.Senior Civil Judge and JMFC in OS No.50/2006 with respect to property bearing No.89 of Santi-Bastwad village which was earlier standing in the name of father of complainant CW- 12 Peeraji Gundu Desurkar. The prosecution to prove the said allegations mainly relies on the evidence of the complaint PW-2 and PW-9 being panch witness to the entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17 with that of investigating officer PW.11. The said evidence is sought to be corroborated by the evidence of PW.4 Development Officer, PW-6 scribe of the complaint and PW-7 was then Executive Officer of Belgaum Taluk Panchayat. The above referred evidence placed on record by prosecution will have to be now re appreciated in the light of case made by the prosecution. 10. The prosecution to prove that accused is public servant relied on the oral testimony of PW-4, PW-7 and 10. They have deposed to the effect the accused was working as secretary of Santi-Bastwad Gram Panchayat. PW-4 Development Officer has issued attested documents Ex.P.20 to 23. The service particulars of accused Ex.P.35 would go to show that accused was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared and the entire process of trap was photographed as per Exs.P.14 to P.16. The certified copies of documents from Gram Panchayat Exs.P.20 to P.23 also came to be seized. Accused has given defence statement Ex.P.27. The receipt book is at Ex.P.29 and the relevant receipt is Ex.P.29(a). The assessment extract entering the name of complainant was not given to complainant as on the date of trap. The same was given only on accepting the money from complainant. Therefore, the prosecution alleged that out of the evidence placed on record, demand and acceptance of illegal gratification has been proved. 13. The evidence of PW.2 complainant would go to show that he enquired about his work on 03.06.2009 about mutating his name on the application filed dated 02.02.2009. PW.2 claims that on the said day, accused demanded illegal gratification of Rs.2,000/- for doing his work. Thereafter, complaint is filed on 23.07.2009. On careful reading of evidence of complainant PW.2, it would go to show that the demand for illegal gratification was made by accused on 03.06.2009 and complaint is filed on 23.07.2009. In between the said period, there is no any evidence of accused having pursued his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money from the accused is concerned, it is the evidence of PW.2 that accused has received the money by right hand and counted the money by both hands. On hand wash of both hands of accused turned to pink colour and the same were seized MO.Nos.3 and 4. The currency notes with number noted in the entrustment panchanama were recovered which was found on the table of accused MO.No.1. PW.11, the Investigating Officer has also spoken about the recovery of tainted money from the table of accused MO No.1 under the trap panchanama as per Ex.P.17. The defence statement of accused Ex.P.27 would go to show that he has received Rs.2,000/- from the complainant and out of it, Rs.200/- was taken as the fee for furnishing the extract recording the name of complainant. Insofar as remaining amount is concerned, his explanation is that there was dispute between complainant and his father CW.12 Veeraji Desurkar. It was decided in the panchayat to provide maintenance of Rs.2,500/- to his father every year. In view of such settlement, money was paid by complainant and not as an illegal gratification. The document at Ex.P.11 was executed on 03.07.2009. The evidence of PW.3 Vice President and PW.5 Member o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was called upon in a hotel to receive bribe. Evidence of complainant and also of independent witness showed that when accused came to hotel room, he asked complainant whether he has brought money as demanded. Accused was offered bribe money which he asked to put in brief case. The brief case containing cash came to be seized and there was assurance of accused to clear his file. The connecting evidence was held to be sufficient to establish demand and acceptance of bribe money. Learned Special Public Prosecutor also placed reliance on another judgment of Hon'ble Apex Court in Narendra Champaklal Trivedi Vs. State of Gujarat AIR 2012 SC 2263. In the said case before the Hon'ble Apex Court bribe money was recovered from possession of accused by raiding party and there was clear evidence of shadow witness that accused has demanded and accepted bribe money. Reliance is also placed on the co-ordinate bench judgment of this Court in Prakash Madiwalayya Mathapati Vs. State of Karnataka AIRONLINE 2020 Kar. 198, wherein, it was found the demand and acceptance of bribe money was proved by evidence on record. The plea of accused that money was thrusted in hands of accused by complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson accused of the offence under Section 7 or 13 of the Act would not entitle his conviction there under". In view of the principles enunciated in the afore- mentioned latest judgment of Hon'ble Apex Court, it is evident that proof of demand and acceptance of bribe money is sine quo non and failure of the prosecution to prove any one of them will not constitute the offence under Section 7 and 13(1)(d) of the Act. 21. In the present case looking to the facts as narrated above, it is evident that complainant filed application dated 02.02.2009 Ex.P.12 with the copy of the order of the Court in OS No.50/2006. The application was considered in the Panchayat meeting held on 03.06.2009. Indisputably the meeting of Panchayat could not be held due to prevailing code of conduct at that point of time. The Panchayat has passed resolution dated 03.06.2009 to record the name of complainant in the records. It appears that there was dispute between complainant and his father regarding payment of maintenance amount and they were called to Panchayat office and Ex.P.11 maintenance agreement was entered on 03.07.2009. Complainant alleged that it is on the said day accused demanded bribe money i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder these circumstances and looking to the evidence of material witnesses PWs.2, 9 and 11, there is no any concrete evidence to prove that accused has demanded illegal gratification for doing the work of complainant. The contention of learned SPP that accused has withheld furnishing of extract Ex.P.21 from the date of resolution dated 03.06.2009 till the date of trap an inference can be drawn that accused has withheld the furnishing of document at Ex.P.21 on demand of bribe money cannot be accepted, since the inference has to be drawn on the proved facts of the case and not on surmises and conjectures. Indisputably, complainant has not approached the accused in between the period of 03.06.2009 to 23.07.2009 and paid or deposited the required fees for furnishing the extract. Therefore, the circumstance referred above by learned SPP cannot be said as sufficient evidence to draw inference that accused has demanded bribe money. There is no any positive evidence on record to prove that accused has demanded bribe money at any point of time. Therefore, in view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court, the proof of demand and acceptance of brib ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
