Whether accused can be convicted for corruption if prosecution fails to prove that he demanded bribe?

 It is 
settled   legal   position   that   unless   the   evidence   of   the   demand   is 
satisfactory, the evidence obtained by laying a trap is required to be 
viewed cautiously.   It would be necessary for the prosecution in such 
cases to prove that it was as a result of 'demand' that the money was 
passed on.  In this case, the evidence of the acceptance of the money by 
itself, is not sufficient to raise the inference about there  having had a 
previous demand of illegal gratification.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.346 OF 2005
Shri Balkrishna Bhau Desai

Versus
The State of Maharashtra

  
­­­
CORAM :   ABHAY M. THIPSAY, J.
DATED  :    23rd APRIL, 2015
­­­



The appellant, who was, at the material time, working as a 
Sectional   Engineer   in   the   Public   Works   Department,   Indapur,   Sub­
Division, Pune, was prosecuted on the allegation of having committed 
offences   punishable   under   section   7   and   Section   13(2)   read   with 

Section   13(1)(d)   of   the   Prevention   of   Corruption   Act.     The   learned 
Special   Judge,   Baramati,   after   holding   a   trial,   found   the   appellant 
guilty of the aforesaid offences and sentenced him to suffer Rigorous 
Imprisonment for  one  year and to pay a  fine  of  Rs.2,000/­  on each 
count, in default to suffer Simple Imprisonment for six months.  Being 
aggrieved by the Judgment of conviction as delivered by the learned 
Special   Judge,   Baramati   and   the   sentences   imposed   by   him,   the 
appellant has approached this Court by filing the present Appeal.
The prosecution case, as put forth before the trial Court, in 
brief, may be stated thus :
One Bharat Gulabrao Raje­Bhosale (PW 1), a Government 
Contractor,   was   given   a   contract   in   respect   of   the   construction   of   a 
road.     The   estimated   cost   of   the   work   was   Rs.24,00,000/­.     Raje­
Bhosale had paid a security deposit of Rs.48,000/­ in the office of the 
Executive Engineer.   Raje­Bhosale commenced the work in the month 
of February 1997 and was receiving payments from the PWD from time 
to time, and in a phase­wise manner.   In the month of March 1997, 
Raje­Bhosale received a payment of Rs.5,00,000/­ under the first bill. 
In the month of April 1997, the appellant and the Deputy Engineer 
one Rajole – had demanded an  amount of  Rs.1,00,000/­ from Raje­
Bhosale by way of bribe.  As Raje­Bhosale did not pay that amount to 
them, they started creating difficulties for Raje­Bhosale.  Rajole stopped 
the supply of asphalt, and got the work delayed.  Raje­Bhosale had to 
meet   the  Executive   Engineer,  and  complaint   about   Rajole   and  Desai 
(appellant).     It   is   only   thereafter,   that   Raje­Bhosale   could   carry   out 
further work.  Again, when the next bill was collected, Rajole and the 

appellant again demanded a bribe of Rs.1,00,000/­ from Raje­Bhosale 
and  threatened that if he would not pay the amount, they would stop 
the asphalt supply.   Raje­Bhosale completed the  work by May 1998, 
and sent a letter to the Executive Engineer informing it.  Raje­Bhosale 
has requested to pay his final bill.  He met the Executive Engineer Shri 
Ashtapure, who, after inspection of the work, directed Rajole and the 
appellant to submit the final bill.  The appellant prepared final bill, but 
it   was   incomplete.     When   Raje­Bhosale   requested   the   appellant   to 
prepare a final bill, he told Raje­Bhosale that Raje­Bhosale would have 
to pay 2% of the whole bill (i.e. Rs.24,00,000/­) to the appellant and 
another   2%  of  the   whole  bill  to   Rajole.  (i.e.total   Rs.84,000/­)   Raje­
Bhosale paid Rs.20,000/­ to the appellant immediately.  Appellant then 
prepared   a   bill   for   Rs.3,50,000/­,   though   actually   the   bill   of     Raje­
Bhosale was for more than Rs.5,50,000/­.     Raje­Bhosale then again 

met   the   Executive   Engineer   Shri   Ashtapure,   who   asked   Deputy 
Engineer Salokhe (who had come in place of Deputy Engineer Rajole) 
to prepare and submit final bill of Rs.2,00,000/­.  Thereafter, there was 
discussion between the appellant and Raje­Bhosale and the appellant 
asked   Raje­Bhosale   to   pay   an   amount   of   Rs.70,000/­,   instead   of 
Rs.84,000/­ as previously demanded.

On 10th  July 1998 at about 9.00 a.m to 9.30 a.m, Raje­
Bhosale made a telephone call to the appellant at his residence and told 
him that he would be coming to the house of the appellant between 
5.00   p.m   to   6.00   p.m.     The   appellant   then   said   that   Raje­Bhosale 
should give Rs.50,000/­ to him, when Raje­Bhosale told him that on 
that day, he would give about Rs.15,000/­ to Rs.20,000/­ and that, the 
remaining he would give after he would get the payment of the bill. 
The appellant agreed to this.
Raje­Bhosale then went to the office of the Anti Corruption 
Bureau, Pune at about 11.00 a.m to 12 noon.  He had taken an amount 
of Rs.15,000/­ with him.   He met Satish Ahire (PW 4),   Inspector in 
that department.  About eight days before 10 th July 1998, Raje­Bhosale 
had met Shri Mushrif, Superintendent of Police, and had apprised him 

of   the   illegal   demands   by   the   appellant.     On   10 th  July   1998,   the 
complaint of Raje­Bhosale was recorded.  At about 2.00 pm to 2.30 pm, 
two   panchas   –   Ramchandra   Jadhav   (PW   3)   and   Santram   Kamble   – 
were   called  in   the  office  of  ACB.     Inspector  read  out   the   complaint 
lodged   by   Raje­Bhosale   to   the   panchas.   Thereafter,   a   trap   was   laid. 
Anthracin   powder   was  applied   to   the   currency   notes   given   by   Raje­
Bhosale   and   appropriate   instructions   were   given   to   him,   and   to   the 
panchas.  As per the trap laid, the police party, the panchas and Raje­
Bhosale went to Indapur and ultimately, when the appellant accepted 
the tainted amount of Rs.15,000/­ in his office, he was apprehended.
In   order   to   establish   its   case,   the   prosecution   examined 
four witnesses during the trial.  The first witness, as aforesaid, is Bharat 
Raje­Bhosale, the First Informant.   The second witness Rashid Gafur 
Sayyed,   Deputy   Secretary   (PWD)   is   the   one   who   had   signed   the 
sanction order issued under section  19 of the Prevention of Corruption 
Act.   (hereinafter 'P
.C.Act' for brevity). The third witness Ramchandra 
Jadhav – it may be recalled – is a panch in respect of the pre­trap and  
post­trap panchnama, and the fourth witness Satish Ahire, Inspector of 
Police, is the trap laying officer.

The defence of the appellant was that he had been falsely 
4
implicated.     According   to   him,   he   had   never   demanded   any   illegal 
gratification from Raje­Bhosale.  The appellant examined Rajole, who, 
as   aforesaid,   was   the   Deputy   Engineer   at   the   material   time,   as   a 
defence   witness.   The   defence   of  the   appellant  is  that   there  were  a 
number   of   faults   in   the   work   carried   out   by   Raje­Bhosale   and   that, 
Raje­Bhosale had, therefore, been warned by issuing a letter to him; 

and that, Raje­Bhosale therefore, had a grudge against the appellant.
I have heard Mr.Shekhar Ingawale, learned counsel for the 
appellant.  I have heard Mr.Deepak Thakre, learned APP for the State.  I 
have gone through the record of the case, and more particularly, the 
entire evidence adduced during the trial and the impugned judgment.
6
It is  contended  by the  learned  counsel  for  the   appellant 
that the judgment and order of conviction, as recorded by the learned 
Special Judge, is not proper or legal.  According to him, the charge, as 
was framed, was not proper.   It is also submitted that the sanction to 
prosecute the appellant, as contemplated under section 19 of the P
.C. 
Act,   was   also   invalid.     According   to   him,   these   factors   have   caused 
serious   prejudice   to   the   appellant,   and   the   appellant   was   therefore, 

entitled   to   be   acquitted.     It   is   also   submitted   that   even   on   an 
appreciation   of   the   evidence,   as   was   adduced   during   the   trial,   the 
finding of conviction could not have  been arrived at.   He submitted 
that the trap was laid without any verification of the alleged demand, 
and   that,   there   was   no   satisfactory   evidence   of   the   demand.     He 
submitted that even as regards the alleged acceptance of bribe, there 
was no satisfactory evidence.  He contended that there were a number 
of discrepancies in the prosecution evidence, creating a serious doubt 
about the truth of the prosecution version, the benefit of which should 
have been given to the appellant, and he should have been acquitted.
I have carefully considered the matter.
8 7 So far as the charge is concerned, indeed the same does 
not appear to be properly or appropriately framed.  The learned Judge 
has framed a composite charge with respect to the offence punishable 
under section 7 and section 13 of the P
.C. Act which was not proper. 
There is substance in the contention advanced by the learned counsel 
for the appellant that the ingredients of an offence punishable under 
section 7 of the P .C.Act, are not found in the charge that was framed 
against the appellant.   Though this appears to be so, I am unable to 

hold that the error in framing of charge, or rather the lack of precision 
and  accuracy  while  framing  it,  as has  happened  in  this  case,  would 
vitiate   the  finding  of  conviction.     It   is  not   possible   to  hold   that  the 
appellant was misled by the framing of the charge, in any manner, or 
was not able to defend himself properly by that reason.  In any case, it  
is not possible to hold that because of the propriety or lack of precision 
in framing of a charge, a failure of justice has been occasioned.  I am therefore, not inclined to  give importance to this aspect.
As regards sanction, the learned counsel for the appellant 
submitted that the sanction in this case was granted by PW 2 Rasheed 
Sayeed, who was, at the material time, working as Under Secretary in 
the Public Works Department, (PWD) Secretariat.  It is contended that 
he was not competent to accord the sanction required under section 19 
of the P .C.Act, and that it was only the concerned Minister who could 
have granted such sanction.  My attention was drawn to the evidence 
of this witness in which he agreed that in case of a public servant whose  
basic  salary  is Rs.10,650/­,  proposal  to  grant  sanction for  prosecution  
would be required to be sent to the Dy. Chief Minister.  That the applicant 
belongs to that category was not – and is not – in dispute.   Rasheed 

Sayeed has stated that under Rule 13 of the Rules of Business framed by  
the Government, the powers to accord a sanction were delegated to him. 
This   is   obviously   incorrect   as   the   power   granted   to   the   Under 
Secretaries   is   only   to   authenticate   the   documents   on   behalf   of   the 
Government.   Therefore, if this witness had granted the sanction, the 
same would have been bad in law.  However, though this witness does 
say   that     it   is   he   who   has   granted   the   sanction,   on   the   face   of   the 
evidence and the sanction order, this claim of the witness is absolutely 
incorrect.   It is apparent from the sanction order that he has merely 
authenticated the same in accordance with the Rules of Business, and 
that the order has actually been passed by and in the name of Governor 
of Maharashtra in whom the executive power of the State is vested  by 
virtue of Article 154 of the Constitution.   The evidence of this witness 

that ' 
 he perused the documents submitted to him, applied his mind and  


took a decision whether sanction should be granted or not  
 ', is not only
  
incorrect, but is ridiculous.   The sanction order was produced before 
the Court during the trial, and no challenge to the validity thereof was 
raised, except that 'the Under Secretary was not entitled to accord the 
sanction for prosecution'.  That the Under Secretary was not competent, 
has to be accepted, but the claim of the Under Secretary that 'he had  

granted the sanction',  cannot be accepted.   Since actually the sanction 
appears to have been granted by the government, no importance can be 
given to the challenge to the validity of the sanction which is based 
purely on a wrong, erroneous and rather ridiculous statement made by 
PW   No.2   Rasheed   Sayed.   Since   there   is   nothing   to   show   that   the 
sanction   had   not   been   granted   in   accordance   with   the   Rules   of 
Business, no fault can be found therewith. As such, this contention
which was rightly not stretched much  –  does not assist the appellant, 
in any manner.
In   view   of   the   contention   that   the   alleged   demand   of 
illegal   gratification   was   not   proved   at   all,   it   would   be   necessary   to 
examine the evidence of Raje­Bhosale in that regard, carefully.   It is 
because except Raje­Bhosale, there is no other witness who can state 
about any such demand.
11
According to Raje­Bhosale, due to the harassment caused 
to the appellant and Rajole, and in order that they should not create 
any difficulties for him in completing the work, he had paid an amount 
of Rs.20,000/­ to the appellant, already.   After completion of further 
work,   and   when   Raje­Bhosale   was   to   get   a   further   amount,   the 
appellant   wanted   further   illegal   gratification   from   him,   and   had 

initially demanded an amount of Rs.84,000/­ from Raje­Bhosale.  It is 
in this background that on 10th  July 1998, at about 9.00 a.m to 9.30 
a.m,   Raje­Bhosale   made   a   telephone   call   to   the   appellant   at   his 
residence, and told him that he would be coming to the house of the 
appellant between 5.00 p.m to 6.00 p.m for giving money to him.  The 
appellant,   according   to   Raje­Bhosale,   said   that   he   should   be   given 
Rs.50,000/­, but Raje­Bhosale told him that, on that day, he would give 

about Rs.15,000/­ to Rs.20,000/­ only, and that the remaining amount 
would  be  given   after   getting   the   payment  of  the   bill.    According  to 
Raje­Bhosale,   the   appellant   agreed   to   accept   the   said   amount   of 
Rs.15,000/­ to Rs.20,000/­.
12
Raje­Bhosale then went to the office of the Anti Corruption 
Bureau   (ACB)   at   Pune   at   about   11   to   12   noon   on   the   same   day. 
Interestingly, he had already taken an amount of Rs.15,000/­ with him. 
He then made his complaint to the Inspector in the office of the ACB. 
After   the   complaint   was   lodged   at   about   2.00   to   2.30   p.m,   the 
Investigating Officer Ahire immediately laid a trap without attempting 
to make any verification of the alleged demand.  Raje­Bhosale was even 
not   needed   to   be   told   about   bringing   the   amount   which   would   be 
offered to the appellant as bribe money,   as Raje­Bhosale had already 

carried that amount with him.  This is rather remarkable inasmuch as, 
ordinarily, the complainant acts after instructions, in that regard, are 
given to him by the Investigating Agency.  Normally, a person does not 
already carry cash with him which is to be used for trapping the corrupt 
public servant.   In this context, it is revealed in the evidence of Raje­
Bhosale that he had already met the Superintendent of Police,   about a 
week prior to 10th July 1992.  Raje­Bhosale did not mention this in the 
complaint.   Anyway, not much turns on this, except that it should be 
clearly understood that Raje­Bhosale had already carried the amount 
which was to be  used for  trapping the  appellant with him when he 
went to the ACB office for lodging the complaint.   Indeed, it appears 
that there was no verification of the statement allegedly made by the 
appellant, and the Investigating Officer did not make any attempt to do 
so. 
There is a discrepancy as to what was the denomination of 
the   currency   notes   that   comprise   the   amount   of   Rs.15,000/­. 
According to Raje­Bhosale, the amount consisted of 150 currency notes 
of   Rs.100   denomination.     However,   according   to   the   Investigating 
Officer and the panch – and as per the prosecution case, the amount 
consisted of 100 currency notes of Rs.100, and another 100 of Rs.50 

denomination.  This discrepancy needed to be taken into consideration 
along  with  other   weaknesses in  the   prosecution  case,  but  it   did  not 
impress the learned trial Judge who termed it as a minor discrepancy. 
14
Even if this discrepancy would not be crucial or fatal, there 
is a serious infirmity in the prosecution case which could not have been 
lightly ignored.   Now, according to Raje­Bhosale, he was given a tape­
recorder by the Investigating Officer for recording the conversation that 
would   take   place   between   him   and   the   appellant.   Raje­Bhosale 
categorically states that one small tape­recorder was given to him, and 
he was instructed to record the conversation between him. This was 
quite   natural, as  there   had  been  no  prior   verification   of  the  alleged 
demand.   Recording of the conversation would support the theory of 
the initial demand, or atleast the demand just before the acceptance.  It 
would   corroborate   the   testimony   of   Raje­Bhosale   in   that   regard. 
Interestingly,   however,   it   is   not   the   prosecution   case   that   any   tape­
recorder  was given  to  Raje­Bhosale.   The  Investigating  Officer  Ahire 
(PW 4) not only did not speak about any tape­recorder being given to 
Raje­Bhosale   for   recording   the   conversation   between   him   and   the 
appellant,   but   categorically   denied   that   any   tape­recorder   had   been 
given to Raje­Bhosale by him. Interestingly, he did admit that in this 
case,   he   was   aware   of   the   possibility   and   desirability   of   having   the 
conversation between the appellant and Raje­Bhosale, recorded.   The 
panch Ramchandra Jadhav (PW 3) also does not speak about any tape­
recorder   being   given   to   Raje­Bhosale   for   recording   the   conversation 
between him and the appellant.
I have carefully considered this aspect.
16 It is not possible to hold that Raje­Bhosale had made an 
accidental   slip   while   speaking   about   he   having   been   given   a   tape­
recorder.     It   is   because   the   story   of   his   having   been   given   a   tape­
recorder,  is not found only on a bare assertion to that effect,  but Raje­
Bhosale   has   given   the   details   of   further   happenings,   categorically 
stating that he did actually record the conversation.  According to Raje­
Bhosale, after the appellant was trapped, the Investigating Officer took 
the   tape­recorder   from   Raje­Bhosale.     He   has   said   this   in   his 
examination­in­chief itself.  In the cross­examination, he said that after 
the   accused   was   trapped,   he   had   given   the   tape­recorder   to   the 
Investigating  Officer,  and  that,   the  cassette   in  the   tape­recorder   was 
played in the presence of panchas after the trap.  Thus, Raje­Bhosale is 
categorical   and   clear   about   the   fact   of   a   tape­recorder   having   been 

given to him, the conversation between him and the appellant being 
recorded, the same having been played over to the Investigating Officer 
and the panchas after the trap, and of the cassette being handed over 
to the Investigating Officer.  
17
The question that arises is why then the prosecution does 
not wish to rely on the conversation that had taken place between Raje­
Bhosale   and   the   appellant?     The   question   that   arises   is   why   the 
Investigating   Officer   is   claiming   that   no   tape­recorder   had   been 
provided to Raje­Bhosale (while admitting that it could be provided), 
and   no   conversation   between   him   and   the   appellant   had   been 
recorded?   The question that arises is who is right –   Raje­Bhosale or 
the Investigating Officer – Ahire (PW 4)?   It is a matter of common 
sense that Raje­Bhosale's version in this regard, cannot be discarded at 
all.  If there had been no tape­recorder, Raje­Bhosale would have had 
no reason to mention about such a tape­recorder.  Moreover, ordinarily, 
the   Investigating   Officer   was   expected   to   have   the   conversation 
between Raje­Bhosale and the appellant recorded when such recording 
facility was available, and when there had been no prior verification of 
the alleged demand.

In   my   opinion,   this   is   a   serious   discrepancy   in   the 
18
prosecution   case.     This   shows   that   the   prosecution   did   not   want   to 
produce the record of the conversation between  Raje­Bhosale and the 
appellant.   Needless to say that in such a situation, the inference that 
the recorded conversation, if produced, would not have supported the 
prosecution case, or the account of the happenings as given by the de 
facto complainant Raje­Bhosale, can legitimately be drawn.
This aspect also did not impress the learned Special Judge. 
19
He did notice  and accept that there was a clear  discrepancy in that 
regard.  He noted the submission of the appellant that the prosecution 
had   deliberately   suppressed   the   audio   cassette   with   a   malafide 
intention.     He   also   noted   that   the   evidence   of   Raje­Bhosale   and 
other in this regard.  However, he did not feel this important at all.  He  
observed :
“It   is   very   pertinent   to   note   that   there   is 
Investigating Officer Ahire (PW 4) contradicted the evidence of each 
nothing   on   record   to   show   that   any   conversation   was 
recorded in the said cassette.  It is quite possible that due to 
some mechanical   defect,  or  if  the  parties   are  talking  in  a 
considerable low voice, a conversation is not recorded.  It is a 
matter   of   demand   of   bribe   and   its   payment   and   can   one 

expect   that   the   accused   and   the   complainant   would   be 
20
speaking loudly so that the neighbors should hear the same”
It  is  not  possible  to   accept  the  reasoning  of   the  learned 
trial Judge.  He forgot that it was not the case of the prosecution 'that 
the record could not be produced because the conversation could not 
be recorded', or that 'the conversation being in a low voice, was not 
audible'.    It   may   be   recalled   that   the   Investigating   Officer   had 
categorically   denied   that   any   tape­recorder   was   used,   and   any 
conversation   between   the   appellant   and   Raje­Bhosale   was   tape­
recorded.  If the learned Judge could observe that due to  mechanical 
defect, 'sometimes a conversation would not be recorded', or 'if the parties  
would be talking in a low voice, conversation would not be audible', why 
could the Investigating Officer not say that 'the conversation had not  
been   recorded  due  to   some   mechanical   defect',   or   'as  the   parties   were 
talking in a low voice, it was not audible', as the case may be.   This 
question,   however,   did   not   bother   the   learned   Special   Judge.     The 
significance of the attempt by the Investigating Officer of suppressing 
that tape­recorder was provided, and conversation had been recorded, 
was not grasped by the learned Special Judge who has resorted to a 
somewhat   perverse   reasoning.     In   the   pursuit   of   this   reasoning,   he 

forgot the evidence of Raje­Bhosale who claimed that the conversation 
had not only been recorded, but was also heard by the Investigating 
Officer and the panchas after the appellant had been trapped.  Ignoring 
this evidence, the learned Judge considered two possibilities without 
any   basis,  and   without   anybody   even   suggesting   it  viz.   that   the 
conversation might not have been recorded due to some mechanical 
defect, or that it would not be audible because of it having taken place 
in   a   low   voice.     He,   however,   ignored   a   third   possibility   i.e.  of   the 
Investigating Officer making a false claim of not recording a conversation  
because the conversation did not support the version of Raje­Bhosale, or  
the theory of the appellant having made a demand of bribe.   Why and 
how this possibility was ruled out, is impossible to understand.   The 
only   reason   behind   ruling   out   this   possibility   seems   to   be   that   this 
possibility is not consistent with the guilt of the accused.  
21
Even if the discrepancy with respect to the denomination 
of   the   counterfeit   currency   notes   to   which  Anthracin  powder  was 
applied, and which was used for trapping the appellant, was not felt 
material, the discrepancy about whether recording of the conversation 
between the appellant and Raje­Bhosale had been done, the evidence 

that it had been done and a feeble attempt to show that it was not done 
at all, just to avoid the production of the record, affect the prosecution 
case severely. 
22
There are also some other discrepancies in the prosecution 
case.     According   to   Raje­Bhosale,   on   going   to   Indapur,   he   and   two 
panchas first were asked to go to the house of the appellant by the 

Investigating Officer.   That, they went to the house of the  appellant 
who was not present there, and his wife who was there, told that the 
appellant   was   in   his   office.     Raje­Bhosale   has   then   corrected   this 
version and said that actually they did not go to the residence of the 
accused, but had sent a peon to the residence of the accused, and that 
the peon brought the information that the accused was in the office. 
The   version   of   the   panch   Ramchandra   Jadhav   (PW   3)   is   however, 
different.   According to him, Raje­Bhosale and he had indeed gone to 
the house of appellant, and that somebody from his house told that the 
appellant  was in  the  office.   Thereafter, the  matter  was reported  by 
Raje­Bhosale and Jadhav to the I.O Ahire (PW 4), who then said that 
they should go to the office of the appellant.  According to Ahire also, 
first Raje­Bhosale and the panch went to the residential quarters of the 
appellant, and since he was not there, and was said to be in the office, 

they went to the office.  This discrepancy is indeed not very significant, 
but what needs to be kept in mind is  that though according to Raje­
Bhosale, the place of meeting was to be the residence of the appellant,  
actually the appellant did not wait there for Raje­Bhosale.
23
Investigating   Officer   ­   Ahire   (PW   4)   had   asked   Raje­
Bhosale   to   keep   the   panch   witness   with   him,   and   initiate   the 
conversation with the appellant in the presence of the panch.  However, 
Raje­Bhosale   himself   actually   asked   the   panch   to   wait   outside   only. 
Therefore,   what   exactly   transpired   when   Raje­Bhosale   met   the 
appellant in his office, is not at all clear.
24
The   evidence   indicates   that   there   had   been   some 
objections about the work carried out by Raje­Bhosale.  Rajole (DW 1) 
stated in his evidence that Raje­Bhosale was slow in his work that there 
were   some   short­comings   in   the   work   carried   out   by   him.       In   his 
evidence, Raje­Bhosale had made an attempt to suppress the fact he 
had received a warning for the short­comings.
25
Undoubtedly,   there   is   evidence   showing   that   the   tainted 
amount   was   handled   by   the   appellant   inasmuch   as   the   tips   of   the 

fingers of  the  appellant were said to be  showing blue  shining when 
seen under the ultra­violet rays.  This would indicate that the appellant 
had handled the tainted amount.  However, when the demand of illegal 
gratification   itself   has   not   been   satisfactorily   proved,   and   when   the 
conversation between the appellant and Raje­Bhosale just before the 
tainted amount was allegedly passed over to the appellant, has been 
suppressed, it would not be possible to hold the appellant guilty only 

on the basis of evidence that he had handled the tainted amount.  It is 
settled   legal   position   that   unless   the   evidence   of   the   demand   is 
satisfactory, the evidence obtained by laying a trap is required to be 
viewed cautiously.   It would be necessary for the prosecution in such 
cases to prove that it was as a result of 'demand' that the money was 
passed on.  In this case, the evidence of the acceptance of the money by 
itself, is not sufficient to raise the inference about there  having had a 
previous demand of illegal gratification.
26
After considering the entire evidence adduced before the 
trial   court,   I   am   of   the   opinion   that   this   was   a   case   where   the 
prosecution had failed to prove the charges against the appellant.   In 
my opinion, the following factors : 
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(i)
APEAL-346-05(J).sxw
  That the complainant while going to the 
office   of   the   ACB   for   lodging   the   complaint,   had 
already carried the amount of bribe which was to be 
used for trapping the appellant;
(ii)
That, the de facto complainant,   had   before 
going to the office of the ACB met the Superintendent 
ig
of   Police,   but   what   transpired   during   that   meeting, 
was   not   disclosed   by   Raje­Bhosale.     Instead,   he 
attempted to show as if the whole matter started on 
10th July 1998 i.e. the day on which he went to the ACB 
office;
(iii)
That,   the   trap   was   laid   without 
verification, or even making an attempt to verify the 
alleged demand of bribe;
(iv)
That,   according   to   Raje­Bhosale,   a   tape­
recorder   was   provided   to   him   and   the   conversation 
between him and the appellant was recorded, and that 
the   recorded   conversation   was   after   the   trap   played 
over by the Investigating officer, the panchas and Raje­
Bhosale.     The   Investigating   Officer,   however, 
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APEAL-346-05(J).sxw
categorically denies that any tape­recorder was used, 
or any conversation had been recorded.   Interestingly, 
he does not explain  why  it was not recorded, though 
such a facility was available, and though, he, on his 
own saying, was aware of the fact that usually in such 
cases, the conversation is recorded;
There   is   a   discrepancy   in   the 
(v)
Rs.15,000/­,
ig
denomination   of   the   notes   consisting   the   amount   of 
collectively, (and the factor regarding the discrepancy about recording of  
the   conversation   singly   and   by   itself),   are   sufficient   to   create   a 
reasonable doubt about the truth of the prosecution version.
27
The   appreciation   of   evidence   as   done   by   the   learned 
Special   Judge,   and   the   conclusion   arrived   at   by   him,   is   not   in 
accordance with law.   This was a case where the appellant ought to 
have been acquitted.
28
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Appeal is allowed.
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The impugned judgment and order is set aside.
30 The appellant stands acquitted.
31 His bail bonds are discharged.
32 Fine, if paid, be refunded to him.
ig
29 
APEAL-346-05(J).sxw
(ABHAY M. THIPSAY, J)
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