PC Act - Mere Recovery Of Tainted Money From Accused Without Proof Of Demand Not Sufficient To Convict : Bombay High Court

The observation was made by Justice Bharati Dangre in the backdrop of 'permissible level of presumption of motive' under Section 20 of the Prevention of Corruption Act.

Section 20 provides that where it is proved against an accused, booked under Section 7 of the Act, that he has accepted any gratification, it shall be presumed, unless the contrary is proved, that he accepted the gratification as a motive for doing or forbearing to do any official act.

"Merely because of the existence of presumption under Section 20 of the PC Act, the burden does not shift on the accused…The prosecution has to stand on its own legs, and if it fails to prove its case beyond a reasonable doubt, the entire edifice of the prosecution case would crumble down," the court observed.

The court set aside the conviction of Sunil Rathod, assistant engineer Vilas Khillari and sub engineer Balaji Birajdar, along with two others, convicted under Sections 7, 12 and 13(1)(d) r/w 13(2) of the PC Act in 2018. They were accused of demanding and accepting bribe of Rs.10-15 lakhs for issuing an Intimation of Disapproval Certificate (IOD) for a redevelopment project.

The court held that the burden to be discharged by the prosecution for securing a conviction under the Prevention of Corruption Act was completely absent in the present case. There was no verified demand for a bribe from the accused, and there were loopholes in the complainant's testimony, the bench said.

"Proof of acceptance of illegal gratification can follow only when there is proof of demand. The same is conspicuously lacking in the present case and the primary facts on the basis of which presumption under Section 20 of the Act can be drawn are completely amiss," Justice Dangre held.

In its 67 page judgement, the court noted that demand of illegal gratification is sine qua non (absolutely necessary) for any offence under the Prevention of Corruption Act.

"Mere recovery of tainted money from the accused in the absence of proof of demand is not sufficient to sustain the conviction," the court held.

"Demand of gratification cannot be held to be proved only on the basis of complaint filed and the legal position being well settled to the effect that any absence of proof of demand, mere recovery of tainted money from accused, cannot sustain his conviction"

Justice Dangre said, in a corruption case, the complainant's claim needs to be closely scrutinized since giving bribe too is an offence. These details were "conspicuously absent" in the prosecution's case.

"The Evidence Act do not contemplate that the accused should prove the case with the same strictness and rigor as the prosecution is required to prove a criminal charge and it is sufficient if the accused is able to prove his case by standard of preponderance of probabilities as envisaged under Section 5 of the Evidence Act as a result of which he succeeds, not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt," the court said.

The court added it was constrained to refer to the entire evidence afresh as the special judge did not delve into the evidence, nor did he appreciate the same.

"As a court of the first instance, it was duty-bound to scrutinize the evidence before arriving at a finding of guilt," the judge said.

The court referred to the judgement of Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 to highlight the three cardinal principles of criminal jurisprudence and Apex court's judgement in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede for presumption under section 20 of the PC Act.

Case: Vilas Ganpati Khillari v. State of Maharashtra

Appearances: Senior Advocate Amit Desai with Advocates Subodh Desai, Ashwin Thool i/b Kartik Garg for Appellant in Appeal No. 1137/2018; Advocate Kunal Ambulkar i/b Niranjan Mundargi for appellant in Appeal No.1039 of 2018; Advocate Girish Kulkarni with Darshan Juikar for Appellant in Appeal No.1102/2018; Advocate Nitin Patil for appellant in Appeal No.114 of 2018; Additional Public Prosecutor SR Agarkar for State.

Click here to read/download the judgment