CriAppeal-539-2012 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 539 OF 2012 The State of Maharashtra, Through Dy. S. P., Anti Corruption Bureau, Jalgaon. ... Appellant Versus Sunil Madhukar Pandhare Age 40 years, Occupation Service, R/o Jalgaon. 10-B, Shinu Bungalow, Near SMIT College, Bhikamchand Jain Nagar, Jalgaon. ... Respondent [Original Accused] ..... Mr. B. B. Bhise, APP for the Appellant-State. Mr. Ashish Sonawane a/w Ms. Sandhya Kawade h/f Mr. V. D. Sonawane, Advocate for the Respondent. ..... CORAM : ABHAY S. WAGHWASE, J. Reserved on : 16.04.2026 Pronounced on : 18.04.2026 JUDGMENT : 1. State hereby challenges judgment and order dated 21.01.2012 passed in Special Case No. 2 of 2009 acquitting present respondent from charge under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (PC Act). 2026:BHC-AUG:16534 CriAppeal-539-2012 -2- 2. In short, prosecution was launched against present respondent on the complaint received from PW2 Mhansing that, on account of dispute with neighbouring land owner, an application for measurement was moved with T.I.L.R. According to complainant, for issuing copy of map and to retain 2/3rd of the land, an amount of Rs.5000/- was demanded by accused respondent. That, after negotiations, the figure was brought down to Rs.2000/- and initially Rs.500/- were paid upfront. As complainant was not willing to pay bribe, he approached ACB office and gave complaint Exhibit 23 on the basis of which PW4 Investigating Officer planned and executed the trap. Accused was apprehended, chargesheeted and tried vide above Special Case which ended up in acquittal. Hence, there is challenge to the same by the State. 3. Learned APP would submit that here, accused was in service of T.I.L.R. and that is not in dispute. He would further submit that accused had accompanied Cadastral Surveyor for carrying out measurement of the land of complainant PW2 on his application and there, demand was raised for bribe with assurance to retain 2/3rd of the land from the adjoining owner. That, prompt complaint was received and therefore, ACB authorities planned trap. He submitted CriAppeal-539-2012 -3- that there was both, demand as well as acceptance. That, testimony of complainant found support from testimony of independent witness like shadow pancha PW3. They both are consistent and lending support to each other on the point of both, demand as well as acceptance and thus, according to him, essentials for attracting the charges were very much available in the prosecution case. He pointed out that, admittedly there were some minor variances and contradictions but the same were not material. He pointed out that, even otherwise, FIR is not an encyclopedia and therefore what was deposed by witnesses in the testimony was worthy of credence and ought to have been accepted. He submitted that, even sanction was proved to be on due application of mind, but according to him, there is failure to consider and appreciate such evidence and therefore he prays to interfere by allowing the appeal. 4. Learned counsel for the respondent accused, while justifying the order of acquittal, would submit that neither demand nor acceptance is proved. According to him, at the outset, there was no work with the accused and rather, entire work was with one Ragade. It is allegation that accused demanded money while in the company of said Ragade. However he questions, what could be the demand for, when there was no official work assigned to the accused?, and CriAppeal-539-2012 -4- thereby submits that, there is therefore no question of raising demand. He pointed out that, similarly there was no locus to the complainant to file application, nor he had filed any application for carrying out measurement and said application was at the instance of another person but said person is not examined. He further pointed out that, even when it was the case of prosecution that present accused, while in the company of one Ragade, a Cadastral Surveyor , had demanded bribe, said Ragade is not examined by prosecution for the best reasons known to it. He also pointed out to the contradictions and variances in the testimony of PW2 and PW3 and would submit that prosecution has miserably failed to prove the charges and thereby, according to him, learned trial court committed no error whatsoever in refusing to accept the case of prosecution. For such reasons, he prays to dismiss the appeal for want of merits. 5. Case of prosecution is rested on the evidence of in all four witnesses i.e. PW1 sanctioning authority, PW2 complainant, PW3 shadow pancha and PW4 Investigating Officer. Defence has also adduced evidence of one Ramesh (DW1) at Exhibit 36, who claims to have witnessed the conversation between complainant and accused at the tea stall. CriAppeal-539-2012 -5- 6. Re-appreciated the evidence. In view of nature of charge, it is to be first ascertained whether there was demand followed by acceptance. Law is fairly settled that unless initial demand is proved, mere acceptance and possession of currency is of no consequence. In the light of such requirements, evidence on record is put to scrutiny. 7. It is noticed that here, PW2, who lodged complaint to ACB, is examined at Exhibit 22 wherein he deposed that he and his brother Kalusing possess land at Paladhi and they have a dispute with their neighbour in respect of trees of over common bandh. Therefore, they decided to get land measured. He claims that he and his brother Kalusing both went to the office of T.I.L.R. on 20.05.2008. He claims that, when they approached accused, he told them to initially deposit Rs.500/- for measurement and if there is urgency in carrying out measurement, then Rs.1000/- will have to be deposited by way of chalan. He claims that again, he and his brother approached accused on 22.05.2008 and finally paid the chalan through SBI bank and accused told them that they would receive notice of measurement by post. It was accordingly received on 03.07.2008 informing the date of measurement to be 15.7.2008. He further deposed that on 15.07.2008, accused and one Ragade measured their land. According CriAppeal-539-2012 -6- to him, at that time accused told them that they will have to lose 2/3rd bighas of land and to save it, they should pay Rs.5000/-, and after negotiations, this witness agreed to pay Rs.2000/-. Rs.500/- were paid at that time and remaining were agreed to be paid on the next day. But he approached ACB, gave complaint Exhibit 23 and then he deposed about next day panchas being called, introduced to him, he narrating panchas his story, panchas signing over his complaint and thereafter he narrated about procedure and demonstration undertaken for application of anthracene powder to the currency. In para 6 he deposed that when they all were proceeding towards the office of accused, at that time, on the way, complainant received telephone call from accused questioning him within how much time he would reach. All members of the raiding party had heard the conversation after the speaker of his mobile was kept on. Thereafter, he and pancha went to the office of the accused. That, accused was present in the office. He deposed that, he told accused that he had brought the amount and that they should go for taking tea. Accordingly they went and while taking tea, accused asked him how much amount is brought, and he answered that he has brought Rs.1500/- upon which accused said to give Rs.100/- or Rs.200/- extra, but he told accused that he would pay only Rs.1500/- as CriAppeal-539-2012 -7- decided earlier and thereafter he gave money which accused accepted, followed by rely of signal. While under cross, he admitted that on 22.05.2008 and 30.07.2008, he had not tendered any application to the accused. He also admitted that, he did not meet Mr. Ragade that day. He admitted that, Mr. Ragade had been to his field for about two hours but there was no discussion at that time. He also stated that one peon was accompanying them. Initially he denied about paying Rs.500/- to accused in the field on 15.07.2008, but when his chief was confronted, he answered that material therein about paying Rs.500/- is not correct. There is omission to the extent of accused saying to him that he will lose 2/3 bighas of land and to save it, he should pay Rs.5000/-. He admits about one Shishupal Pardeshi, who is his cousin brother-in-law, advising him to approach ACB and also accompanying him to the ACB office on 30.07.2008. He answered that he had given mobile number to the accused by writing in his own handwriting, but he is unable to remember as to when he had given it to accused. To a question, whether as long as he was in the office of accused, no talks had taken place about demand of money and therefore accused was taken for tea, this witness had made gestures with hands suggesting that accused made gestures with hand inquiring about money. To a CriAppeal-539-2012 -8- further question as to from which place he gave signal to the raiding party, witness answered that there was no question of giving signal to the raiding party as they were standing near him. Rest is all denial. 8. Thus, from above evidence it is clear that firstly, complainant was all throughout accompanied by his brother Kalusing, but Kalusing is not examined. He has admitted that he has not given any application for measurement. His testimony shows that on 15.07.2008, when measurement was carried out, that time accused was accompanied by one Ragade and he was actually the Cadastral Surveyor who carried out measurement but even Ragade is not examined. Though in chief he stated about accused informing about losing 2/3rd bighas of land and to save it, to pay Rs.5000/-, it is proved to be an omission. Another pertinent feature of his testimony is that, in para 6 of his chief he stated that after he and pancha approached accused in his office, he himself seems to have offered money, as he stated that he told accused that he has brought amount and they should go for tea. His such testimony shows that even while carrying out main trap, prior to any demand, complainant seems to have offered to pay. Apparently therefore, there is no demand at this stage till they go for tea, rather there is offer from complainant. Consequently, as point out, there is no demand. CriAppeal-539-2012 -9- 9. Further, though complainant PW2 speaks about accused making phone call on his mobile while they they were proceeding to meet accused, investigating machinery has not gathered CDR to demonstrate such call being received or any demand being made over phone. Moreover, witness deposed about he carrying mobile of his son and he is unable to state as to when he shared said mobile number to the accused. Again, though he has deposed about all hearing conversation after speaker was kept on, conversation has not been recorded by Investigating Officer. Even his testimony in para 6 regarding the events that took place in the office of accused and while going to tea, it is doubtful whether shadow pancha was accompanying him, because he only names himself as well as accused going for tea. His further cross shows that during visit to the field for measurement, one peon was also accompanying accused and Cadastral Surveyor Ragade, but said peon is also not examined. Consequently, important witnesses who could have corroborated demand, namely, Kalusing (cousin brother-in-law of complainant) as well as the said peon are not examined by prosecution Therefore on the point of initial demand, there is no corroboration. CriAppeal-539-2012 -10- 10. It is fairly settled position that demand is sina qua non to attract the charges. Law to this extent has been dealt by the Hon’ble Apex Court in the case of Union of India v. Purnandu Biswas (2005) 12 SCC 576 and T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 401. 11. PW3 is the shadow pancha. Law is fairly settled that in cases of such nature, complainant being interested party, it is expected of independent witness to corroborate complainant. To this extent law is loud and clear in the judgment of Panalal Damodar Rathi v. State Of Maharashtra (1979) 4 SCC 526. In the light of such requirements, evidence of shadow pancha is visited. 12. PW3 deposed at Exhibit 24A regarding being called to ACB office, visiting it, hearing complainant’s grievance, endorsing Exhibit 23, and he further narrated the procedure undertaken by ACB authorities for drawing pre trap panchanama, application of anthracene powder to the currency notes and giving necessary instructions. Regarding the main trap, he deposed that while they were proceeding to Jamner and when they had reached Neri, complainant CriAppeal-539-2012 -11- received one telephone call, upon which Investigating Officer suggested all to keep quite and to listen the conversation. According to him, said telephone call was from accused and he told complainant that he was to come to his office with money and why he has not reached in his office by time, and complainant told him that he would reach to his office within short time. It is to be noted that, this witness does not speak like PW2 complainant that, conversation was heard by all as complainant had put the speaker of his mobile on. Therefore, witnesses are not consistent. Regarding the main trap he deposed that he himself, complainant and accused came to take tea near Jamner bus stand and raiding party followed them. According to him, there were some talks between complainant and accused and thereafter complainant took out currency and handed over it to the accused. His such evidence clearly shows that he had not heard the actual conversation between complainant and accused and that, in what context money changed hands. Again, this witness had affirmed presence of Shishupal Pardeshi, i.e. cousin brother-in-law of complainant, who is shown to be instrumental since beginning till main trap is conducted, but is not examined. Admittedly, as stated above, alleged conversation over cell phone is not substantiated either by recording the alleged CriAppeal-539-2012 -12- conversation nor by collecting CDR and this witness in cross has admitted that Investigating Officer did not instruct complainant on the point of use of his cell phone after the conversation. Therefore, vital material is missed by the investigating machinery. 13. Another feature of this case is that, as pointed out, it has come on record that actual measurement was done by Mr. Ragade and he was the Cadastral Surveyor who was expected to carry out measurement and even issue measurement map. It has merely come on record that accused was in the company of Mr. Ragade, but there is no confirmation on this point, as Ragade himself is not examined. When sanctioning authority himself has endorsed in cross that it is Ragade who drew the map and it bore his signature, question arises as to for what work accused could have demanded bribe. Even sanctioning authority has admitted that there was no any document as to when copy of map was handed over to complainant, and he failed to ascertain when the map was given to the complainant. But his such answers show that work of issuing map was already done and therefore doubt arises about motive to put demand. Therefore, this is also another factor which creates doubt about prosecution story. CriAppeal-539-2012 -13- 14. Resultantly, case of prosecution not being free from doubt, there cannot be said to be error or perversity on the part of trial Judge in acquitting the accused. Hence, following order is passed : ORDER The criminal appeal is dismissed. [ABHAY S. WAGHWASE, J.] vre