IMPORTANT POINT
Demand of money, not mere acceptance of money, is a foundation in a case under the PCA.

JUDGMENT

Kanade V.M., J.—Head the learned Counsel appearing on behalf of the appellant and the learned A.P.P. appearing on behalf of the State.

2. Appellant has filed this appeal, challenging the judgment and order passed by the Special Judge, Solapur dated 7/12/2006 whereby the learned Judge was pleased to convict the appellant for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 20,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one year and the learned Judge also convicted him for the offence punishable under Section 13 (1)(d) and 13 (2) of the Prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 30,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one and half years.

3. Prosecution case, in brief, is that the appellant was serving as a Senior Police Inspector in Vijapur Naka Police Station at Solapur. Prosecution case is that he demanded an amount of Rs. 50,000/- from the complainant by threatening to arrest him and his servant in counterfeit currency case. Prosecution case is that, initially, some amount was paid by the complainant and the accused demanded balance amount of Rs. 25,000/-. Complainant – Bharat Pandurang Jadhav filed a complaint with the Anti Corruption Bureau. The currency notes of Rs. 25,000/- were covered with anthracene powder and the pre-trap panchanama was prepared. The Investigating Officer took raiding party to the Police Station and the complainant and the panch witness Madan Kulkarni entered the cabin of the accused. Prosecution case is that the accused demanded money from the complainant and, thereafter, the complainant handed over the said tainted money to the accused in the presence of panch witness and, thereafter, gave prearranged signal. The accused put the said amount in his pocket and, as a result, impressions of anthracene powder were found on his hand. The accused was, thereafter, arrested. Sanction to prosecute the accused was granted by the Additional Director General of Police.

4. Prosecution examined in all 11 witnesses. PW 4 Bharat Pandurang Jadhav who was the complainant, in cross-examination did not support the prosecution case and he was declared hostile with the leave of the Court. PW 8 Shriniwas Madam also turned hostile. The punch witness PW 5 Madan Kulkarni, however, supported the prosecution case and stated that the money was demanded in his presence and it was accepted in his presence by the accused.

5. Trial Court relied on the testimony of PW 5 Madan Kulkarni who was the panch witness, though PW 4, who was the complainant, turned hostile and on the basis of the said evidence held that the demand had been established by the prosecution and that the acceptance also was proved beyond reasonable doubt. On the basis of this evidence, trial Court convicted the accused.

6. Shri Patil, the learned counsel appearing on behalf of the appellant submitted that the demand was the foundation of the case under the Prevention of Corruption Act and unless demand is conclusively established by the prosecution, mere acceptance of money was not sufficient to convict the accused. In support of the said submission, counsel for the appellant relied upon two judgments; one of the Supreme Court in Sat PauI v. Delhi Administration1 and the another of this Court in Pandharinath Shelke v. State of Maharashtra.2 He submitted that the complainant PW 4 had turned hostile and, therefore, no reliance could be placed on his testimony. He further submitted that PW9 Rajkumar Shriman, initially, was named as an accused, by the prosecution. However, no charge sheet was filed against him and, subsequently, the prosecution has examined him as prosecution witness. He submitted that, therefore, no reliance could be placed on his testimony since he was an inter