The main legal point established in the judgment is that the demand of illegal gratification is essential for proving the offence under the Prevention of Corruption Act, and mere recovery of tainted money is not sufficient to convict the accused.

JUDGMENT

Sandeep K Shinde, J. - It is an appeal under Section 374(2) of the Criminal Procedure Code, 1973 against the conviction recorded under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentence of one year rigorous imprisonment, and fine Rs.1,000/-, in default, imprisonment for one month for each offence imposed in Special Case No.1/2007 by the Special Judge, (Anti-Corruption), Thane by judgment and order dated 14th October, 2010.

2. Prosecution case in brief is, that accused no.1 a Traffic Constable and accused no.2 a Police Naik, were to regulate the traffic in Thane City. Alleged, that accused no.1 demanded bribe Rs.50/- from the complainant, for returning driving license, which was taken for alleged violation of traffic rules. Complainant, thus approached the Anti-Corruption Bureau. After drawing a pre-trap panchanama, Complainant and the panch witness, Patange reached the spot. At the relevant time, accused no.1 could not be seen around, but instead Police Naik-accused no.2 was regulating the traffic. Complainant enquired with accused no.2 about accused no.1, whereupon, accused no.2 told him that, accused no.1 had given his license to him. After a while, accused no.1 reached the spot, who then asked the complainant to pay Rs.50/- to accused no.2 and collect the license from him. Consequently, license was handed over by accused no.2 to the complainant, after accepting Rs. 50/- after which, accused no.2 was apprehended and tainted currency notes were recovered from his possession. Following completion of investigation, previous sanction under Section 19 of the Act was granted. The learned trial Court, upon appreciating the evidence of the complainant-P.W.1, Panch Witness, Patange-P.W.2, Sanctioning Authority and/or Investigating Officer convicted the accused of offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced them to suffer for one year and fine with default stipulation. It is against conviction and sentence, the Appeal is preferred.

3. Heard Mr. Gole, learned Counsel for the appellants and Mr. Agarkar, learned Prosecutor for the State.

4. Mr. Gole, learned Counsel for the appellants has taken me through the evidence of the complainant and the panch witness and would submit that neither the complainant nor panch witness supported the prosecution, on the point of demand of illegal gratification. Mr. Gole submitted, that the learned trial Court did not appreciate the evidence of these two witnesses in right perspective and recorded erroneous finding that prosecution has proved, demand of illegal gratification beyond reasonable doubt. Mr. Gole, would also submit that the complaint lodged by the complainant was against accused no.1 and the pre-trap panchanama indicates that, tainted money was to be handed over to the accused no.1, once he makes a demand. Mr. Gole, submits that, though trap was laid as against the accused no.1, however, the tainted currency was allegedly recovered from accused no.2. It is therefore submitted that, in absence of evidence of pre-arrangement between accused nos.1 and 2 and complainant that accused no.2, would accept the bribe on behalf of accused no.1, the recovery of tainted currency from accused no.2, does not further prosecution case. In support of his contention, Mr. Gole, has relied on the judgment of the Apex Court in the case of Sadashiv Mahadev Yavaluje & anr. V/s. State of Maharashtra, (1990) 1 SCC 299. On these submissions, he seeks acquittal of the appellants-accused.

5. Mr. Agarkar, learned Prosecutor would support the impugned conviction and sentence and submits that, this Court should not interfere with the findings when it is founded on cogent and reliable evidence, unless it is perverse. He seeks dismissal of appeal.

6. It is well settled that, demand of illegal gratification is sine-qua-non for constituting the offence under the 1988 Act. Mere recovery of