The prosecution must prove that the demand and acceptance of money by a public servant constitutes illegal gratification under the Prevention of Corruption Act.

JUDGMENT - R.S. MOHITE, J.:---In this appeal, the appellant seeks to quash and set aside the judgment and order dated 26-10-1999 whereby the Special Judge, Washim, has convicted the appellant under the provisions of section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month.

2. The prosecution case was that the accused was working as a Canal Inspector. On 3-1-1996 he had measured the land of the accused situated in village Vakapur. The measurement was required to be done in connection with a complaint that the complainant Sudhakar Wankhede had taken the canal water. After taking the measurement, on 19-1-1996 the accused had met the complainant Sudhakar and told him that, Saaheb had called him. On 23-1-96 the complainant visited the office alongwith one Prabhakar Wankhede. The appellant met him and told him that he had prepared the panchanama of his field and that the complainant would have to pay Rs. 300/- and if he failed to pay Rs. 300/-, then he would have to pay Rs. 900/- as fine which was three times the amount of the fee. The appellant is alleged to have said that if the complainant paid the amount, he would not forward the panchanama. The appellant is alleged to have demanded Rs. 200/- and this was agreed to be paid by the complainant, but he had not paid the same on that date.

3. On 4-2-1996 the complainant met the appellant and the appellant is said to have again demanded an amount.

4. On 6-2-1996 Sudhakar visited the office of the Anti Corruption Bureau and filed the complaint.

5. On 7-2-1996 a pre-trap panchanama was prepared and the police party alongwith panchas and the complainant proceeded to Selu Bazar, there the complainant alongwith shadow panch Padole met the accused at the bus-stand and proceeded to hotel where they were taking a cup of tea. On that place the accused is said to have asked the complainant Sudhakar as to whether he had brought the amount. Sudhakar replied that he would pay the amount and panchanama should not be sent to the upper office, to which the appellant said that if the complainant paid Rs. 200/-, he would not send the panchanama to the higher officer. The complainant then paid Rs. 200/- which was accepted by the appellant and kept in his pocket. Thereafter, the signal was given and the trap was sprung.

6. The post trap panchanama was prepared on 13-1-1996 which is at Exh. 14.

7. The defence of the appellant as can be seen from his statement recorded under section 313 Cri.P.C. as well as suggestions given to the witnesses was categorical and precise. It was his contention that the complainant was not a stranger, but was in fact his distant relative, that the complainant Sudhakar had taken a hand loan of Rs. 500/- from the appellant at the time of sowing season and thereafter he had repaid an amount of Rs. 300/- after selling Mung and had assured the appellant that he would repay the remaining amount of Rs. 200/- afterwards. He has admitted that there occurred a dispute between the complainant and himself on the ground of execution of panchanama and that he had only demanded outstanding amount of Rs. 200/-.

8. It is thus seen that the acceptance of Rs. 200/- as such is not disputed but the defence is that the demand as well as acceptance of an amount can not be said to be of a illegal gratification.

9. I find that as far as the first demand dated 23-1-96 is concerned, the purpose of the demand of Rs. 200/- is not mentioned at all. The statement that the panchanama would not be forwarded if the amount was paid relates to the earlier sentence which is in relation with legal remuneration charges. In the F.I.R. there is mention of a demand being made by the appellant on 27-1-96 at Selu Bazar, but there is no whisper in the substantial evidence of the complainant. As regards the demand made on 7-2-1996, in the hotel, in cross-exam

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