BOMBAY HIGH COURT
P.N.Deshmukh, J.
Narendra —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No.394 of 2007
Decided on 5.12.2014~

IMPORTANT POINTS
(1) It is incumbent on the prosecution to prove that a valid Sanction has been granted by the Sanctioning Authority after it was satisfied that the case for Sanction has been made out constituting the offence. The Authority based on the facts placed before it has to be satisfied and then has to arrive to its conclusion whether case is made out for grant of sanction or not.
(2) Mere recovery of bribe money from the possession of appellant is not sufficient to constitute the offence, in the absence of proof of demand and acceptance of money as illegal gratification which must be established by prosecution beyond reasonable doubt and only then presumption can be raised.

Headnote:Prevention of Corruption Act, 1988 — Section 7 and 3(1)(d) r/w 13(2) — Appellant a Junior Clerk attached to Court of Judicial Magistrate accepted Rs.100/- as bribe from complainant for getting acquittal in a prohibition case and was caught in the trap — Appeal against conviction — Evidence of complainant died not find corroboration from contents of his report — Inconsistent evidence of complainant did not inspire confidence — Prosecution case did not appear to be reliable when the case was posted for further evidence and not for final disposal — Sanction for prosecution was accorded in mechanical manner — Mere recovery of bride money from appellant was not sufficient in absence of proof of demand — Conviction was liable to be set aside. (Paras 12 to 15, 20 & 21)

       (ii) Prevention of Corruption Act, 1988 — Section 13(1)(d) r/w 13(2) — Accused a Junior Clerk attached to Court of Judicial Magistrate accepted Rs.100/- as bribe from complainant for getting acquittal in a prohibition case and was caught in the trap — Sanction for prosecution — It was incumbent on prosecution to prove that a valid sanction was granted by Sanctioning Authority after it was satisfied that case for sanction was made out — Court has to see whether or not sanctioning Authority was aware of facts constituting offence and applied its mind for same.

       Held: In the background of above discussed evidence and on considering evidence of PW 4 – Chinnapa Dhopare, Sanctioning Authority, prosecution case is further found to be doubtful, as according to PW 4, he has accorded sanction as he prima facie came to the conclusion that there exists case for grant of sanction to prosecute appellant and accordingly accorded sanction (Exh.42). In the cross examination, this witness has admitted that there is no mention in the bottom portion of sanction order as to for what purpose money was demanded. He further admits that date as 21st of September, 1997 is wrongly mentioned in sanction order instead of 21st of August, 1997 and admits that he had not gone through the papers in Criminal Case Nos.1452 of 1996 or 197 of 1997 and as such further admits that he is unaware if on 21st of August, 1997 Criminal Case No.1452 of 1996 was fixed for evidence of Investigating Officer. He also admits that Clerk has no power to acquit or to discharge the appellant and as per practice the only dates are given by the Clerk.

       In view of above evidence of Sanctioning Authority, it is seen that he has acted in a mechanical way without application of mind. By now, it is well settled law that it is incumbent on the prosecution to prove that a valid Sanction has been granted by the Sanctioning Authority after it was satisfied that the case for Sanction has been made out constituting the offence. The Authority based on the facts placed before it has to be satisfied and then has to arrive to its conclusion whether case is made out for grant of sanction or not. In the instant case, it appears that the Sanctioning Authority presuming that appellant must have posed complainant to do his work, accorded sanction and therefore, the case since appears to have been instituted without proper Sanction, it must fail as this is a manifest defect in the case of prosecution thereby rendering entire proceedings into void ab initio. It is to be noted that the court has to see whether or not the Sanctioning Authority was aware of the facts constituting the offence and applied its mind for the same. In that view of the matter, prosecution case fails on this count also. (Paras 17 & 18)

       (iii) Prevention of Corruption Act, 1988 — Section 20 — Presumption — Mere recovery of bride money from possession of accused is not sufficient to constitute offence in absence of proof of demand and acceptance of money as illegal gratification.

       Held: Learned Additional Public Prosecutor with reference to the facts involved in the appeal has relied upon the ratio in the case of Narendra Champaklal Trivedi ..vs.. State of Gujrat reported in (2012)7 SCC 80 and has submitted that since the bribe money is recovered from the person of accused, presumption as contemplated under Section 20 of the Act needs to be raised which appellant has failed to rebut and thus submitted that appeal needs to be dismissed. However, arguments advanced on behalf of prosecution are not convincing at all in view of the settled legal principle that mere recovery of bribe money from the possession of appellant is not sufficient to constitute the offence, in the absence of proof of demand and acceptance of money as illegal gratification which must be established by prosecution beyond reasonable doubt and only then presumption can be raised. In fact, the explanation whatsoever may be offered by the appellant by way of rebuttal, is necessary to be considered by the Court on the basis of preponderance of probabilities. In the authorities cited supra relied by prosecution, presumption under Section 20 of the Prevention of Corruptions Act was raised as in that case demand and acceptance of illegal gratification and recovery of tainted money from the possession of appellant was established while appellant failed to rebut the presumption drawn against him. Unlike the appeal in hand, where evidence led by prosecution right from its inception, as reveals from the charge and evidence of complainant, does not inspire confidence as in Prohibition Case No.197 of 1997 complainant appears to have been acquitted prior to the date of alleged demand while Prohibition Case No.1452 of 1996 is found to have adjourned to 30th of December, 1997 and as such the case of prosecution of appellant’s demanding Rs.100/on 21st of August, 1997 for seeking acquittal of complainant in this case does not inspire confidence. (Para 21)

       Result: Appeal allowed.