12 Sep 2022 4:15 AM GMT
The Bombay High Court has held that a person cannot be convicted under the Prevention of Corruption Act, 1988 (POCA) on the basis of morals and ethics. The basic requirement of demand and acceptance of bribe must be proven by the prosecution beyond reasonable doubt.Justice S. D. Kulkarni overturned the conviction in a criminal appeal observing – The corruption is spreading like cancer in...
The Bombay High Court has held that a person cannot be convicted under the Prevention of Corruption Act, 1988 (POCA) on the basis of morals and ethics. The basic requirement of demand and acceptance of bribe must be proven by the prosecution beyond reasonable doubt.
Justice S. D. Kulkarni overturned the conviction in a criminal appeal observing –
The corruption is spreading like cancer in our great nation. The disease of the corruption has been with us since long time. The common man is facing this rampant corruption, but a person for the charges of corruption under the Act cannot be convicted on moral and ethics. When the law provides certain mandatory requirements for proving offence, no shortcut is permitted.
The appellant was a Sub Divisional Engineer in the Department of Telecommunications (DoT) at Aurangabad. The complainant Devidas Mohite had applied for installation of STD/PCO booth at Aurangabad. After spot inspection, the appellant refused to give connection on account of change of site. Anil Agrawal, an STD machines dealer informed the complainant that he had to pay 2000 Rs. to install the STD booth in the same premises. The complainant approached the Anti-Corruption Bureau who laid the trap in the appellant's office. The appellant was found with currency notes of Rs.2,000/- with anthracene power. He was convicted under Sections 7, 13(1)(d) and 13(2) of the POCA. He challenged the conviction before the High Court.
R. N. Dhorde, senior counsel for the appellant submitted that the complainant as well as the Panch Witness had turned hostile and did not support the prosecution's case. There was no direct demand by the appellant to the complainant. The demand and acceptance of bribe by the is a sine qua non for conviction. Mere recovery of currency notes from the appellant without proof of demand do not constitute the relevant offences. Presumption under Section 20 of the POCA can be raised only when demand by accused is proved.
S. P. Deshmukh, APP for the State submitted that though witnesses turned hostile, their evidence needs to be examined as a whole and whatever part of evidence is found reliable can be accepted. Tainted currency notes were found in the socks of the appellant without any explanation. His concealment of the notes shows that he had accepted the bribe. Hence the presumption under Section 20 must be drawn. The appellant has failed to rebut the presumption.
The court noted that the entire case rests on the testimony of Devidas Mohite (complainant), Prakash Nikam (panch witness) and Abhay Agrawal (supplier/contractor of STD Booth machines). None of the witnesses testified about demand and acceptance of bribe by the appellant.
The court referred to several cases including M. R. Purushotham v. State of Karnataka in which the Apex Court held that mere possession and recovery of currency notes from the accused without proof of demand do not constitute offence under Section 13(1)(d) read with Section 13(2) of the Act.
"It is clear just like day light that the prosecution has miserably failed to prove the basic legal requirement of demand and acceptance of bribe as contemplated under Section 13 (1)(d) read with Section 13(2) of the Act", the court said adding that the material witnesses have not supported the basic legal requirement of demand and acceptance of bribe by the appellant.
The court further noted that the tainted currency notes were found in the appellant's right leg sock after two fruitless attempts to search the hiss cupboard and table drawer. This alleged recovery was held to be not reliable as the complainant had nowhere stated that the appellant had put the notes in his right leg sock.
The Court further noted that the mandatory sanction in the present case was bad in law as the sanctioning authority has not applied his mind. He did not consider whether a prima facie case against the appellant has been established or not.
The court set aside the conviction order of the appellant and acquitted him of all charges.
Case no. – Criminal Appeal No. 491 of 2005
Case title – Sayaji Dashrath Kawade v. The State of Maharashtra
Citation : 2022 LiveLaw (Bom ) 324
Coram – Justice Shrikant D. Kulkarni
Click Here To Read/Download Judgment