The demand of illegal gratification is essential for constituting an offence under the Prevention of Corruption Act. Mere recovery of tainted money is not sufficient to convict the accused when the substantive evidence is not reliable. The prosecution must establish the foundational facts before calling upon the accused to explain the finding of the amount.

JUDGMENT :

PRAKASH D. NAIK, J.

1. This appeal is preferred against the Judgment and order dated 31st March, 2015 passed by learned Special Judge Ichalkaranji, District Kolhapur in Special Case No. 01 of 2008 convicting the appellant for the offence under Section 7 of Prevention of Corruption Act, 1988 (for short “PC Act”) and Section 13(1)(d) r/w Section 13(2) of the PC Act, wherein the applicant is sentenced to suffer rigorous imprisonment for two years on each count.

2. The brief facts of the prosecution case are as under:-

(i) Original complainant Sadashiv Mahadev Patil is agriculturist and resident of old Pargaon, Taluka-Hatkanangale, District-Kolhapur. On 1st July, 2005 he obtained land Gat No. 49 admeasuring 0-H 20-R situated at Pargaon from its owner Uday Rangrao Ghatage by way of registered mortgage by conditional sale. Since then complainant was in possession of the said land. He made application to Talathi, Pargaon for making entry of mortgage in other rights column of 7/12 extract in respect of mortgage of land Gat No. 49.

(ii) Uday Ghatage gave an application to Talathi Pargaon objecting the entry of mortgage in other rights column of 7/12 extract in favour of complainant, on the ground that, Mr. Patil executed the mortgage by conditional sale under threats. Thereafter, Talathi Pargaon referred the matter to the office of Tahsildar, Hatkanangale.

(iii) The complainant received notice of Tahsildar for appearing in the said proceedings on 15th December, 2006 at 11.00 a.m. Accordingly, on 15th December, 2006 complainant appeared in the office of Tahsildar and came to know that the proceedings are with the accused, who is working as clerk in the said office. Complainant met the accused, who gave further dates from time to time.

(iv) Sadashiv Mahadev Patil told the complainant that, he would put up his file before Tahsildar as early as possible for giving decision in his favour and for that he has to pay Rs. 4,000/- to him. After negotiation, the amount was reduced to Rs. 3,000/-. Complainant unwillingly agreed to pay the amount to accused. He was told to bring the amount on 20th March, 2007 in the office of Tahsildar.

(v) On 17th March, 2007, complainant approached Anti-Corruption Bureau, Kolhapur (for short “ACB”) and lodged complaint against the accused. The complaint was reduced into writing as per his say. His signature was obtained on the complaint. Panch witnesses were called. They were directed to come to ACB office on 20th March, 2007. Complainant and panch Kaingade and Rekha Patil appeared in the office of ACB at 10.00 a.m. Complainant produced amount of Rs. 3,000/-. Anthracene powder was applied to the currency notes. Instructions were given to the complainant and panch. Panch No. 1 was instructed to be with complainant in the office of Tahsildar and hear conversation between complainant and accused and observe their movements after acceptance of bribe by accused.

(vi) Complainant and Panch No. 1-Rekha Patil entered into office of Tahsildar. They met the accused. They were asked to wait out. Accused joined them. He told the complainant and panch to come towards hotel. They went to Bhagwan hotel near the office of Tahsildar. Complainant inquired about his work. Accused asked him, whether he has brought Rs. 3,000/-. The complainant took out the currency notes. Accused took currency notes in his left hand and put the same into pocket of his pant. Complainant gave signal to raiding party. Accused was apprehended. Tainted notes were recovered from his possession. Statement of witnesses were recorded. On completing investigation, charge-sheet was filed.

3. Charge was framed on 25th July, 2011. The motive as per evidence of PW-1 is contrary to charge. It reads as follows:-

“That between 1-07-2006 to 20-3-2007 you were working as the rights entry clerk in Tahsil Office, Hatkanangale, District, Kolhapur and after 12-12-2006 you being a public servant demanded Rs. 4,000/- to the original complainant Sadashiv Mahadeo Patil for mak