The lack of proof of demand for illegal gratification is a crucial factor in determining the conviction under Sec. 7 and Sec. 13(1)(d) r/w Sec. 13(2) of the PC Act.

JUDGMENT

1. This appeal is preferred under Sec. 374 of Code of Criminal Procedure (for short "Cr.P.C.") challenging the judgment and order dtd. 16/12/1997 passed by the Special Judge, Greater Bombay, in Special Case No.33 of 1990, convicting the appellant for offences punishable under Ss. 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988 (for short "PC Act") and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000.00.

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

i. The accused was working as an Associate in the Bombay High Court. The complainant is hotelier by business. He was also secretary of Pant Nagar Shankar Sadan Co-operative Housing Society, Ghatkopar.

ii. In the year - 1988, three occupants in the society extended balconies of their respective flats in the open space of the society without seeking permission for extension and alteration in their respective flats.

iii. Notices were sent to those flat owners/occupiers and complaint/application was filed against them before Deputy Registrar of Co-operative societies, N-ward, Navi Mumbai.

iv. On 22/8/1989, the complaints filed by the society were dismissed for default.

v. The society challenged the orders passed by the Deputy Registrar of Co-operative Societies, N- ward by preferring three Writ Petitions in the Bombay High Court. These Petitions were filed on 12/9/1989. Petitions were admitted by the High Court on 19/9/1989 and the hearing was expedited. The complainant being the Secretary of Pant Nagar Shankar Sadan Co. Op. Housing Society was pursuing these petitions.

vi. Pursuant to order dtd. 19/9/1989, the papers of the Petitions remained with the accused. He did not forward those papers to Execution Department. The complainant made enquiry with the accused about the papers and at that time the accused demanded Rs.100.00 for sending papers to Execution Department. The complainant again met the accused on 25/9/1989 and at that time the accused told him that he would not forward the papers to the Execution Department unless the complainant pay him Rs.100.00.

vii. The complainant went to ACB office on 26/9/1989 and lodged the complaint. Offence was registered against the accused under Sec. 7 of PC Act. Panchas were arranged. They were introduced to complainant. On 27/9/1989 facts were narrated to the panchas. The procedure for trap was demonstrated. Currency notes totalling the amount of Rs.100.00 were obtained from complainant for using it for bribe. Anthracene powder was applied to the currency notes.

viii. The complainant was instructed to visit High Court along with panch and handover money to the accused only on demand. He was also instructed to give signal to raiding party after transaction. The panch was instructed to be with complainant and hear the conversation and witness the transaction between the complainant and the accused. The other panch was instructed to be with the raiding party. Pretrap panchanam was prepared by Investigating Officer at ACB office.

ix. All of them proceeded to the High Court. The complainant and panch approached the accused. The complainant asked the accused about his matter and he was told by the accused that he will have to verify it. The accused came out of the Court hall and started walking. The complainant and panch walked with the accused and proceeded to Associates room situated on the ground floor. The members of raiding party and panch followed them at safe distance. The accused went to his table. The complainant asked him about his work. The accused took out the papers which were lying near his table and told him that his work was done and demanded money. The complainant took out currency notes of Rs.100.00 and handed over to the accused. The accused accepted the notes and kept it in the shirt pocket. Since money was accepted by accused, the complainant gave signal to raiding party. The raiding party immediately rushed to the spot and caught hold of accused. Clot