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2021 DIGILAW 294 (BOM)

Pradeep Yashwant Shirke v. State of Maharashtra

2021-02-09

A.S.GADKARI

body2021
JUDGMENT 1. Appellant Santosh Nagvekar, in Appeal No.128 of 2017 is original accused No.1 and appellant Pradeep Shirke, in Appeal No.121 of 2017, is original accused No.2 in A.C.B. Special Case No.1 of 2014. For the sake of brevity, the appellants hereinafter will be referred to as per their original nomenclature before the Trial Court. i.e. 'Accused No.1' and 'Accused No.2'. 2. The appellants have questioned correctness of Judgment and Order dated 31st January 2017 passed by the learned Special Judge (Under the P.C. Act) , Greater Mumbai in A.C.B. Special Case No.1 of 2014. The Accused No.1 Santosh A. Nagvekar has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short, "P.C. Act") and sentenced to suffer simple imprisonment for 6 (six) months and to pay fine of Rs.8,000/-, in default of payment of fine to further suffer simple imprisonment for 30 (thirty) days. Accused No.2 Pradeep Y. Shirke is convicted for the offence punishable under Section 12 read with 7 of the P.C. Act and sentenced to suffer simple imprisonment for 6 (six) months and to pay fine of Rs.8,000/-, in default of payment of fine to further suffer simple imprisonment for 30 (thirty) days. The Trial Court has also convicted both the accused for the offences punishable under Sections 13(1)(d) read with 13(2) of the P.C. Act and sentenced them to suffer simple imprisonment for 6 (six) months and to pay fine of Rs.8,000/- each, in default of payment of fine to further suffer simple imprisonment for 30 (thirty) days each. The Trial Court has directed that, substantive sentences shall run concurrently. 3. Heard Mr. Kocharekar, learned counsel for the appellant in Criminal Appeal No.121 of 2017, Mr. Majgaonkar, learned counsel for the appellant in Criminal Appeal No.128 of 2017 and Mr.Palkar, learned A.P.P. for Respondent-State. Perused entire record. 4. The prosecution case in brief is as under :- i] The complaint for demand of bribe, basically by Santosh Nagvekar (Accused No.1), was lodged by Mr.Ganesh S. Phadke (PW-1) on 23rd November 2012 with the Anti-Corruption Bureau (for short, " A.C.B.") Mumbai. The complainant (PW-1) was working as a reporter in Mumbai Life News Channel. That, on 26th September 2012, he was suffering from throat infection and therefore, he went to G. T. Hospital, Mumbai for treatment on 27th September 2012. The complainant (PW-1) was working as a reporter in Mumbai Life News Channel. That, on 26th September 2012, he was suffering from throat infection and therefore, he went to G. T. Hospital, Mumbai for treatment on 27th September 2012. He obtained case papers and went to Ward No. 27 for treatment. Medicines were prescribed to him. After taking medicines, he required and was in need of medical certificate for joining the duties. He therefore went to G.T. Hospital in the month of November 2012 for obtaining medical certificate. There he met one person by name Nana @ Santosh Nagvekar (A-1) and made enquiry for getting medical certificate from the said hospital and told him that, he was in need of medical certificate. Santosh Nagvekar (A-1) told him that, he would have to pay an amount of Rs.2,500/- and Rs.500/- extra i.e. in all Rs.3,000/- for getting medical certificate. The complainant (PW-1) told Santosh Nagvekar (A-1) that, he was not in a position to give such an amount. Thereafter, mobile phone numbers were exchanged between the complainant and Santosh Nagvekar (A-1). Santosh Nagvekar(A-1) subsequently told the complainant that, he would have to pay Rs.2000/- for getting medical certificate and if the complainant did not pay the said amount, he would not get it. ii] As the complainant (PW-1) did not intend to pay the said amount to Santosh Nagvekar (A-1), he therefore went to the office of the A.C.B. in the last week of November and met Police Inspector Mr. Hanumanth A. Vetal (PW-7) and told his grievance to him orally. P.I. Vetal (PW-7) asked to him to give his complaint in writing and accordingly a complaint was lodged. The complainant himself wrote the said complaint dated 23 rd November 2012 (Exh.17), and along with it he also submitted his case-papers issued by G.T. Hospital, Mumbai. iii] On 23rd November 2012, P.I. Vetal (PW-7) called two panch witnesses, namely, Mr. Pramod K. Govalkar (PW-2) and Mr. Chandrakant N. Parkhad (both were working in Rationing Office) and introduced them with the complainant (PW-1). The said complaint was read over to the witnesses, who after reading, signed it. P.I. Vetal (PW-7) thereafter, decided to conduct the verification regarding the demand of alleged bribe amount on 26 th November 2012. A voice call recorder was arranged and after formatting a micro SD card was inserted in it, in presence of panch witnesses. The said complaint was read over to the witnesses, who after reading, signed it. P.I. Vetal (PW-7) thereafter, decided to conduct the verification regarding the demand of alleged bribe amount on 26 th November 2012. A voice call recorder was arranged and after formatting a micro SD card was inserted in it, in presence of panch witnesses. The said Digital voice recorder (D.V.R.) and SD card were found blank at the relevant time. iv] The complainant (PW-1) along with panch witness PW-2 and other Police Officers then proceeded towards the G.T. Hospital. They entered in the premises of G.T. Hospital and made enquiry about Santosh Nagvekar (A-1) on that day. It was informed to them that, on that day Santosh Nagvekar was on leave. P.I. Vetal (PW-7) thereafter directed the complainant (PW-1) to make call to Santosh Nagvekar (A-1) and directed the complainant to switch on the speaker of his mobile. The complainant from his mobile No. 9594745480 gave a call to Santosh Nagvekar (A-1) on his mobile phone bearing No.9892887949. Santosh Nagvekar informed him that, he is on leave due to illness. The complainant made enquiry with Santosh Nagvekar about his medical certificate, when Santosh Nagvekar (A-1) allegedly demanded Rs.2,000/- for issuing it and directed complainant to come on the next day. Thereafter, the conversation between complainant (PW-1) and Santosh Nagvekar(A-1) was stopped. The complainant along with panch witness (PW- 2) and other Police Officers came back to the A.C.B. Office. The Officers of the A.C.B. took the said voice recorder from the complainant (PW-1). P.I. Vetal (PW-7) thereafter registered F.I.R. as per the say of the complainant (PW-1) in vernacular. The complainant put his signature on the F.I.R. (Exh.25). P.I. Vetal (PW-7) thereafter directed the complainant (PW-1) to bring an amount of Rs.2,000/- on next day. v] On the next day, i.e. on 27th November 2012, the complainant went to A.C.B. Office. The said two panch witnesses, A.C.P. Ratnaparkhi, A.C.P. Katkar, P.I. Vetal and other staff of A.C.B. were present in the said office. The formal procedure of pre-trap panchanama was completed in the said office. P.I. Vetal (PW-7) told panch witnesses Shri Govalkar (PW-2) to be nearby with the complainant and to observe the things. Another panch witness was to remain present along with the A.C.B. staff. The formal procedure of pre-trap panchanama was completed in the said office. P.I. Vetal (PW-7) told panch witnesses Shri Govalkar (PW-2) to be nearby with the complainant and to observe the things. Another panch witness was to remain present along with the A.C.B. staff. It was decided that, after the A-1 Santosh Nagvekar accepts the said amount, the complainant to give signal to the A.C.B. staff by putting his left hand over his head. vi] The complainant (PW-1), panch witness Mr. Govalkar (PW-2); panch witness Parkhad, P.I. Vetal (PW-7); A.C.P. Katkar, A.C.P. Ratnaparkhi along with other staff of A.C.B. proceeded towards G.T. Hospital by walk after parking their vehicles near Metro Theater. A voice recorder was provided to the complainant by the A.C.B. Officers in the vehicle at Metro Theater. After reaching to G.T. Hospital, the complainant (PW-1) met Santosh Nagvekar (A-1) in the OPD itself. Santosh Nagvekar (A-1) directed him to bring his case papers and the complainant (PW-1) brought it by paying charges of Rs.10/- and sat on a bench outside the OPD. The complainant asked Santosh Nagvekar(A-1) about his medical certificate whereupon Santosh Nagvekar told him to wait for a while. Santosh Nagvekar (A-1) went away from that place and again came back with two unknown persons and introduced them with the complainant as Pradeep Shirke (A-2) and Dr. Chandanshive. Pradeep Shirke (A-2) asked complainant (PW-1), as to why he required medical certificate to which the complainant answered that, it is necessary for his office purpose. The RMO Dr. Chandanshive told complainant that, considering the span of the leave it should have been mentioned that, he was suffering from jaundice and all the three went away from the said place by directing the complainant to wait for some time. vii] After sometime, Santosh Nagvekar(A-1) came back to the complainant and demanded Rs.2,000/- from him. The complainant therefore put his right hand in right hand side trouser pocket and gave the alleged bribe amount of Rs.2,000/- to Santosh Nagvekar(A-1), who accepted it with his right hand and put it in his right hand side pocket of trouser. viii] Santosh Nagvekar (A-1) thereafter went away from the said place by asking complainant (PW-1) to stay there. The complainant (PW-1) asked A.C.B. staff to wait for some time by giving signal. viii] Santosh Nagvekar (A-1) thereafter went away from the said place by asking complainant (PW-1) to stay there. The complainant (PW-1) asked A.C.B. staff to wait for some time by giving signal. At that time, P.I. Vetal (PW-7) also wanted to see whether any other persons were involved in the said offence or not and thereafter he was keeping watch on the other employees and Santosh Nagvekar (A-1). ix] After completing duties A-1 Santosh Nagvekar again came to the complainant and at that time he was wearing other clothes than which were on his person at the time of accepting bribe. The complainant (PW-1) and Santosh Nagvekar (A-1) thereafter went on the first floor canteen. Santosh Nagvekar took lunch and the complainant took tea in the said canteen. Panch witness Mr. Govalkar (PW-2) was also there. Santosh Nagvekar (A-1) told complainant that, the medical certificate would be handed over on next day. The complainant and Accused No.1 thereafter came down on the ground floor and thereafter the complainant gave predetermined signal to the A.C.B. staff. The A.C.B. staff immediately caught hold both the hands of Santosh Nagvekar(A-1). P.I. Vetal (PW-7) made enquiry with Santosh Nagvekar (A-1) about the amount of Rs.2,000/-. Santosh Nagvekar (A-1) told P.I. Vetal (PW-7) that, out of the amount of Rs.2,000/- he had given Rs.1,500/- to Pradeep Shirke(A-2). P.I. Vetal (PW-7) asked Santosh Nagvekar(A-1) about the whereabouts of Pradeep Shirke(A-2). At that time, Pradeep Shirke (A-2) was seen coming towards raiding party and Santosh Nagvekar by pointing out of his finger told the said fact to P.I. Vetal (PW-7). The A.C.B. staff thereafter apprehended Pradeep Shirke (A-2) and made enquiry about the amount of Rs.1,500/-. Pradeep Shirke (A-2) told the A.C.B. staff that, he has kept the said amount of Rs.1,500/- in his house which was behind the said hospital. x] Thereafter, the complainant, two panch witnesses and A.C.B. staff along with Santosh Nagvekar (A-1) went to the house of Pradeep Shirke(A-2). The wife of Pradeep Shirke was inside the house. The raiding party along with panch witnesses entered the house of Accused No.2 and after being pointing out by Pradeep Shirke (A-2) they recovered Rs.1,500/- from beneath the bedding of the cot. The carpet under which the said amount was kept and was also seized by the police. Police thereafter asked Santosh Nagvekar (A-1) about the remaining amount of Rs.500/-. The raiding party along with panch witnesses entered the house of Accused No.2 and after being pointing out by Pradeep Shirke (A-2) they recovered Rs.1,500/- from beneath the bedding of the cot. The carpet under which the said amount was kept and was also seized by the police. Police thereafter asked Santosh Nagvekar (A-1) about the remaining amount of Rs.500/-. Santosh Nagvekar (A-1) told them that, the said amount was in his handbag and handed over the said amount to the A.C.B. Officers from the said bag. The raiding party along with complainant, accused persons, and other A.C.B staff then came back to G.T. Hospital and informed the said fact to the RMO. The RMO allowed the raiding party to use his cabin for conducting further procedure. The currency notes were checked in ultra-violate light. At that time, the complainant (PW-1) was not present inside the cabin as he was asked to go outside by P.I. Vetal (PW-7). xi] Thereafter all the said persons went to L.T. Marg Police Station Mumbai. The voice recorder was taken from the complainant and its transcription was prepared in the police station. Police seized the said voice recorder and said SD card therein. After completing necessary legal formalities of post pre-trap panchnama; receipt of report of voice sample of conversation recorded in the said micro SD card from the Forensic Science Laboratory (FSL), the papers of the said case were forwarded to the Competent Authority for obtaining necessary sanction. The Dean of Sir J.J. Group of Hospitals, Mumbai accorded sanction to prosecute appellants. A.C.B. thereafter filed charge-sheet against the appellants before the trial Court. 5. The Trial Court framed charge against appellants below Exhibit-6 on 15th June 2015 for the offence punishable under Section 7 read with 12 and 13(1)(d) read with 13(2) of the P.C. Act. The contents of the charge were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. The defence of the accused persons was of total denial. Santosh Nagvekar (A-1) in his defence filed written explanation (Exh.56-A). Apart from specific denial of all the charges Santosh Nagvekar also stated that, he had neither concern in respect of issuance of the medical certificate nor with its process in any manner. The defence of the accused persons was of total denial. Santosh Nagvekar (A-1) in his defence filed written explanation (Exh.56-A). Apart from specific denial of all the charges Santosh Nagvekar also stated that, he had neither concern in respect of issuance of the medical certificate nor with its process in any manner. That, he never demanded bribe amount from the complainant at any point of time for any reason nor received any amount from him. He has stated that, the complainant was well acquainted with him much prior to the said incident. He had stood as a witness in respect of an agreement of giving room of the complainant and his brother on leave and licence basis. That the mother of complainant wanted to purchase a room and she had informed her said wish to him (A-1). Mother of the complainant had paid a sum of Rs. 1,90,000/- as advance through cheque for purchase of the said room to Smt. Sugandha Nimbalkar. After some days the complainant (PW-1) approached him (A-1) and informed that, his mother does not want to purchase the said room and the amount which was paid by his mother to the said lady be returned to him. He (A-1) flatly refused to do the same as he had not accepted any amount from his mother and had no concern with the said transaction. The complainant (PW-1) had therefore threatened him (A-1) of serious consequences thereof and it is for that reason the complainant has implicated him (A-1) in the present crime. That, on the date of alleged incident, the complainant again approached him and asked for the said amount to which he (A-1) again refused. He thereafter had his lunch and came out of the canteen and apprehended by the Officers of A.C.B. That, no amount of bribe was recovered from his (A-1) possession. He never handed over any amount to Pradeep Shirke (A-2). No traces of anthracene powder were found on his hands or cloths. 6. Pradeep Shirke (A-2) also denied all the charges and has stated that, he had no concern in respect of issuance of medical certificate. He had not received any amount of bribe either from the complainant (PW-1) or from Santosh Nagvekar (A-1). That, no traces of anthracene powder were found either on his hands or cloths. 7. 6. Pradeep Shirke (A-2) also denied all the charges and has stated that, he had no concern in respect of issuance of medical certificate. He had not received any amount of bribe either from the complainant (PW-1) or from Santosh Nagvekar (A-1). That, no traces of anthracene powder were found either on his hands or cloths. 7. The prosecution, in order to bring home guilt against the appellants, examined in all eight witnesses, namely, Shri Ganesh S. Phadke (PW-1), complainant/informant; Shri Pramod K. Govalkar (PW-2), panch witness for verification of demand and trap; Shri Vijay E. Shinde (PW-3), Nodal Officer of Ideal Cellular Company, who has issued certificate regarding C.D.R. of complainants mobile phone No.9594745480; Smt. Suvarna V. Tari (PW-4), Police Constable, for recording voice samples of both the accused and complainant on 30th November 2012; Shri Ashish D. Rathod (PW-5), a Scientific Officer attached to F.S.L.; Shri Yogesh S. Rajapurkar (PW-6), Nodal Officer from Bharti Airtel Limited Company, who has identified the certificate and C.D.R. in respect of mobile No.9892887949 of the accused No.1; Shri Hanumant A. Vetal (PW-7), Investigating Officer; and Shri Sudesh B. Ukarde (PW-8) a Police Constable and Technician who has transcribed verification of pre-trap panchanama dated 26th November 2012 and verification on 27th November 2012 by following necessary procedure. The Trial Court after recording evidence of the said witnesses and hearing the learned Advocates for the respective parties was pleased to convict appellants by its impugned Judgment and Order dated 31 st January 2017. 8. Mr. Kocharekar, learned counsel appearing for appellants submitted that, the micro SD card on which the alleged conversation between Santosh Nagvekar (A-1) and complainant (PW-1) from their respective mobile phones dated 26th November 2012 was recorded, was found to be blank at the time of recording of substantive evidence in Court and therefore the demand by Santosh Nagvekar(A-1) itself is not proved. He submitted that, Pradeep Shirke (A-2) has not made demand from the complainant (PW-1). He submitted that, Pradeep Shirke (A-2) admittedly never demanded any amount from the complainant and only because some amount is recovered at his instance, he has been convicted by the trial Court. He submitted that, Santosh Nagvekar (A-1) has proved by producing documents on record that the complainant was well acquainted with him much prior to the date of alleged incident. He submitted that, Santosh Nagvekar (A-1) has proved by producing documents on record that the complainant was well acquainted with him much prior to the date of alleged incident. The complainant was having grudge in his mind against Santosh Nagvekar (A-1) and therefore he with the help of the Officers of the A.C.B. has falsely implicated him in the present crime. He submitted that, there are material contradictions in the testimonies of the relevant witnesses which leads to the inference that, the offence against appellants has not been proved by the prosecution. He therefore prayed that, the present Appeals may be allowed. 9. Per contra, Mr. Palkar, learned A.P.P. vehemently opposed the Appeals and submitted that, there is sufficient material available on record to show the complicity of the appellants in the crime. Learned A.P.P. however fairly conceded to the fact that, the complainant (PW-1) in his evidence itself has admitted that, the said micro SD card on which the alleged conversation between complainant and Santosh Nagvekar (A-1) dated 26 th November 2012 was recorded, was found to be blank in the Court at the time of recording of substantive evidence. Learned A.P.P. therefore prayed that, the present Appeals may be dismissed. 10. The facts pertaining to demand and acceptance of alleged bribe amount by the Santosh Nagvekar (A-1) as has been deposed by Mr. Ganesh Phadke (PW-1), have been narrated in the forgoing paragraph Nos.4(i) to 4(x) and repetition of the same is avoided for the sake of brevity. PW-1 in his testimony has deposed that, the bribe amount was accepted by Santosh Nagvekar (A-1) with his right hand and kept it in his right hand side trouser pocket. Santosh Nagvekar (A-1) thereafter went away from the said place by asking PW-1 to stay there. It is important to note here that, at this juncture, instead of giving pre-determined signal to the raiding party PW-1 asked the A.C.B. staff to wait for some time by giving signal. After completing duties A-1 Santosh Nagvekar again came to PW-1 and at that time he was wearing the other clothes on his person. They thereafter, went on the first floor canteen where A-1 Santosh Nagvekar took lunch and PW-1 took tea and they came down on ground floor and at that time the raid was conducted. After completing duties A-1 Santosh Nagvekar again came to PW-1 and at that time he was wearing the other clothes on his person. They thereafter, went on the first floor canteen where A-1 Santosh Nagvekar took lunch and PW-1 took tea and they came down on ground floor and at that time the raid was conducted. Upon enquiry by P.I. Vetal (PW-7) with Santosh Nagvekar (A-1) about the amount of Rs.2,000/-, he told P.I. Vetal (PW-7) that, an amount of Rs.1,500/-, out of the amount Rs.2,000/- has been given to Pradeep Shirke (A-2). P.I. Vetal (PW-7) asked Santosh Nagvekar (A-1) about the whereabouts of Pradeep Shirke (A-2). At that time, Pradeep Shirke (A-2) was coming towards them and Santosh Nagvekar (A-1) by giving signal by his finger told to P.I. Vetal (PW-7) about Pradeep Shirke. The A.C.B. staff thereafter apprehended Pradeep Shirke (A-2) and made enquiry about the amount of Rs.1,500/-. Upon being informed by A-2 Pradeep Shirke, A.C.B. staff went to his house and recovered the said amount of Rs.1,500/- from beneath the bedding of the cot. After seizure of the said amount of Rs.1,500/-, the police asked Santosh Nagvekar (A-1) about the remaining amount. Santosh Nagvekar (A-1) told them that, the said amount was kept in his handbag and gave recovery of the said amount of Rs.500/- to the police from the said bag. In his examination-in-chief itself Mr.Ganesh Phadke (PW-1) has admitted that, the micro SD card (Article-1) was totally blank when played in the Court. It is also recorded in the evidence of Mr.Ganesh Phadke (PW-1), by the Court that, the concern Technician was unable to locate files installed in the said SD card and according to him the said SD card was totally blank. The said SD card was containing conversation between Mr.Ganesh Phadke (PW-1) and Santosh Nagvekar (A-1) which was transcribed and produced before the Trial Court. The evidence of PW-1 indicates that, the said micro SD card was again played in the Court for the second time in presence of all the concern by use of another Laptop, however it was found totally blank. In his cross examination, Mr.Ganesh Phadke (PW-1) has admitted that, he did not obtain any medical certificate from G.T. Hospital prior to the said incident. That, he was knowing Santosh Nagvekar (A-1) one month prior to the said incident. In his cross examination, Mr.Ganesh Phadke (PW-1) has admitted that, he did not obtain any medical certificate from G.T. Hospital prior to the said incident. That, he was knowing Santosh Nagvekar (A-1) one month prior to the said incident. He was in need of medical certificate of two months to give to his employer. He didn't know Mr. Deepak D. Sonar and Mr. Mukund V. Wadekar. He didn't remember whether in the year 2005 he entered into a leave and license agreement with Mukund Wadekar in respect of premises bearing room no.53 in Mulji House, Prabhadevi Road, Mumbai. On being confronted with the signature of leave and license agreement dated 1 st May 2005 and the signature on the F.I.R., PW-1 admitted that, his signature on the F.I.R. is similar to the signature on the leave and license agreement (Art.-A). He did not receive any cheque dated 16th January 2013 for Rs.5,000/- drawn on Corporation Bank issued by Santosh Nagvekar (A-1) in his favour. He has denied that, mother of Deepak Sonar was his aunt. An omission that, while lodging the complaint, he had mentioned that, he made call to Santosh Nagvekar (A-1) from his mobile phone bearing No. 9594745480 has been brought on record. PW-1 has admitted that, after the said incident (27th November 2012) he never visited the said hospital for getting medical certificate. Till then he had not received any medical certificate from the said hospital. That, after giving the amount within 2 to 3 minutes he gave predetermined signal to the raiding squad. He has admitted that, in his statement, he never stated that Pradeep Shirde (A-2) asked him as to why he required medical certificate and he told him that, the said certificate was required for his office purpose and thereafter, RMO Mr. Chandanshive told him that considering the span of leave it should have been mentioned that he was suffering from jaundice. A specific omission that, the complainant did not state in his statement that, thereafter Santosh Nagvekar (A-1) came to him and demanded Rs.2,000/- from him has been brought on record. A further omission that, the complainant had not stated in his statement that Santosh Nagvekar (A-1) told the Officer that he had kept amount of Rs.500/- in his bag and P.I. Vetal (PW-7) seized the said bag has also been proved. 11. Mr. A further omission that, the complainant had not stated in his statement that Santosh Nagvekar (A-1) told the Officer that he had kept amount of Rs.500/- in his bag and P.I. Vetal (PW-7) seized the said bag has also been proved. 11. Mr. Pramod Govalkar (PW-2) a panch witness to the demand and trap laid by the A.C.B., in his deposition has no where stated that, Santosh Nagvekar (A-1) demanded any amount from Mr.Ganesh Phadke (PW-1). He has deposed that, after reaching to OPD department of G.T. Hospital, complainant met one person i.e. Santosh Nagvekar (A-1). He saw it from a distance. Then both sat on the bench outside the office of the Santosh Nagvekar (A-1). Thereafter, complainant (PW-1) went towards OPD. After sometime both the complainant and Santosh Nagvekar (A-1) again sat on the bench. Thereafter, the complainant (PW-1) took out currency notes from his pocket and handed over to the accused Santosh Nagvekar (A-1) who kept it in his right side pocket of his trouser. The complainant thereafter gave predetermined signal. That, P.I. Vetal (PW-7) asked him to wait for a while as he wanted to see how many persons are involved in the said incident. He followed complainant and Accused No.1 to the canteen on the first floor of the said building. He found that, Santosh Nagvekar (A-1) was taking lunch and the complainant was taking tea. PW-2, P.I. Vetal (PW-7) and other staff were sitting in the canteen. The complainant and Santosh Nagvekar (A-1) thereafter came down from the first floor and thereafter the complainant again gave predetermined signal. Two constables came forward and caught Santosh Nagvekar (A-1). On enquiry, Santosh Nagvekar (A-1) told P.I. Vetal (PW-7) that, he had handed over the said amount to his colleague Pradeep Shirke (A-2). On enquiry with Pradeep Shirke (A-2), he told the officers that he had kept the said amount beneath the bedding of the cot in his room. That, an amount of Rs.1,500/- was recovered at the instance of Pradeep Shirke (A-2) from his house. P.I. Vetal (PW-7) then asked Pradeep Shirke (A-2) about the remaining amount of Rs.500/- to which he (A-2) answered that, the said amount was with Santosh Nagvekar (A-1). That, Santosh Nagvekar (A-1) thereafter took out amount of Rs.500/- from his right hand side pant pocket. 12. P.I. Vetal (PW-7) then asked Pradeep Shirke (A-2) about the remaining amount of Rs.500/- to which he (A-2) answered that, the said amount was with Santosh Nagvekar (A-1). That, Santosh Nagvekar (A-1) thereafter took out amount of Rs.500/- from his right hand side pant pocket. 12. P.I. Vetal (PW-7), Investigating Officers in his examination in chief has admitted that, Santosh Nagvekar (A-1) had changed his shirt when he saw him in the canteen. That Santosh Nagvekar (A-1) was taking lunch and complainant (PW-1) was taking tea. After sometime both of them came down from the first floor and and at that time he along with other officers of A.C.B. apprehended Santosh Nagvekar (A-1). That, he directed the panch witness No.2 Mr. C. N. Parkhad to take search the person of Santosh Nagvekar (A-1). Thereafter, he took out the said currency notes of Rs.500/- from the right hand side pant pocket of Santosh Nagvekar (A-1). That, panch witness Mr. Govalkar (PW-2) found an amount of Rs.2000/- which was kept inside the newspaper from beneath the bedding of the cot of Pradeep Shirke (A-2). 13. The evidence of PW-3, PW-4, PW-5, PW-6 and PW-8 is on the periphery and has no direct bearing for the decision of the present Appeals, as the conversation recorded on micro SD card between complainant (PW-1) and Santosh Nagvekar (A-1) was found totally blank on two consecutive occasions while recording of substantive evidence in the Court. As far as conversation recorded at the time of actual trap i.e. on 27 th November 2012, by affixing a micro tape recorder on the person of the complainant is concerned, the most important evidence i.e. of PW-2 is totally silent about the demand of any amount by Santosh Nagvekar (A-1) on the date of actual trap and as noted earlier, it is the complainant, who handed over tainted amount to Santosh Nagvekar (A-1) in the hospital when they were sitting on the bench outside OPD. Therefore the alleged recording of conversation between complainant and Santosh Nagvekar (A-1) on 27th November 2012, is inconsequential for the prosecution. The trial Court in para No.26 of the impugned Judgment and Order has relied on transcription of conversation between the complainant (PW-1) and Accused No.1 which took place on 26th November 2012. Therefore the alleged recording of conversation between complainant and Santosh Nagvekar (A-1) on 27th November 2012, is inconsequential for the prosecution. The trial Court in para No.26 of the impugned Judgment and Order has relied on transcription of conversation between the complainant (PW-1) and Accused No.1 which took place on 26th November 2012. As noted earlier, the micro SD card from which the said transcription was effected itself was found totally blank in the Court while recording substantive evidence and therefore the transctiption which was effected in the office of A.C.B prior to recording of evidence of the material witnesses looses his importance, as the original document (micro SD card) (Article-1) was found to be blank by the complainant (PW-1) himself. 14. The aforestated evidence and record of the present case clearly indicates that, Pradeep Shirke (A-2) never demanded any bribe amount from Mr.Ganesh Phadke (PW-1). The evidence on record is silent about the actual trail of money from the hands of Santosh Nagvekar (A-1) to Pradeep Shirke (A-2). The material available on record is further silent about the fact that Pradeep Shirke A-2 was having knowledge that, the amount given by Santosh Nagvekar (A-1) to him was proceeds of a crime. There is every possibility of having an interse monetary transaction between Santosh Nagvekar (A-1) and Pradeep Shirke (A-2). It is important to note here that, the Investigating Agency first recovered the alleged tainted amount of Rs.1,500/- from the house of Pradeep Shirke (A-2) and thereafter an amount of Rs.500/- from the handbag of Santosh Nagvekar(A-1) which was kept at a place accessible to others. The Investigating Agency did not swiftly swung into motion immediately after bribe amount alleged to have been accepted by Santosh Nagvekar (A-1) and at the instance of Mr.Ganesh Phadke (PW-1) they waited for substantial period to be lapsed. As noted earlier, Santosh Nagvekar (A-1) after completion of his duty changed his clothes and met Mr.Ganesh Phadke (PW-1). They had lunch and tea respectively at the canteen and thereafter raid was conducted. In such circumstances, there was no possibility at all to have traces of anthracine powder on the hands of Santosh Nagvekar (A-1). 15. It is to be further noted here that, there are material contradictions, with respect to the actual place of recovery of the said amount of Rs.500/- from Santosh Nagvekar (A-1), in the testimonies of Mr. In such circumstances, there was no possibility at all to have traces of anthracine powder on the hands of Santosh Nagvekar (A-1). 15. It is to be further noted here that, there are material contradictions, with respect to the actual place of recovery of the said amount of Rs.500/- from Santosh Nagvekar (A-1), in the testimonies of Mr. Ganesh Phadke (PW-1); Pramod Govalkar (PW-2), a panch witness and P.I. Vetal (PW-7). Mr. Ganesh Phadke (PW-1) has stated that Santosh Nagvekar (A-1) took out of Rs.500/- from his bag whereas Pramod Govalkar (PW-2) has stated that Santosh Nagvekar (A-1) took out of Rs.500/- from his pant pocket. P.I. Vetal (PW-7) has deposed that panch witness No.2 Mr. Parkhad took personal search of Santosh Nagvekar and recovered Rs.500/- from his right side pant pocket. The said panch witness No.2 Mr Parkhad has not been examined by the prosecution for the reasons best known to it. Mr. Ganesh Phadke (PW-1) and Mr. Pramod Govalkar (PW-2), panch witness have deposed that, an amount of Rs.1500/- was found beneath the bedding of the cot of Pradeep Shirke (A-2) in his room. However, PW-7 has deposed that, an amount of Rs.2000/- was found under the bed. Panch witness Mr. Pramod Govalkar (PW-2) has not deposed about any demand of bribe amount by Santosh Nagvekar (A-1) and he has stated that it is the complainant Ganesh Phadke (PW-1) who handed over the said amount to Santosh Nagvekar while they were sitting on the bench outside the OPD department. 16. It is a well-settled position of law that demand of illegal gratification is a sine qua non for the offences under Sections 7 and 13(1)(d). Conversely, in the absence of proof of demand of illegal gratification, the offences under Sections 7 and 13(1)(d) cannot be made out. The Hon'ble Supreme Court in the case of B. Jayaraj Vs. State of Andhra Pradesh, reported in (2014) 13 SCC 55 , in para No.7 has held as under :- "Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. [( 2010 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu Vs. C.B.I. [ (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1]." The said view is reiterated by the Hon'ble Supreme Court in the cases of (i) T.K. Ramesh Kumar Vs. State Through Police Inspector, Banglore, reported in (2015) 15 SCC 629 , (ii) Khaleel Ahmed Vs. State of Karnataka, reported in (2015) 16 SCC 350 and (iii) N. Sunkanna Vs. State of Andhra Pradesh, reported in (2016) 1 SCC 713 . It is thus clear that, demand is sine-qua non in the case of bribary, i.e. acceptance of illegal gratification. Unless there is proof of demand of illegal gratification, proof of acceptance or mere finding of tainted amount of bribe with the accused will not follow. 17. The evidence available on record further indicates that, at the time of recording of statement of Santosh Nagvekar (A-1) under Section 313 of Code of Criminal Procedure, he has produced on record a Leave and Licence Agreement dated 1st January 2006 executed between Mr. Deepak Devidas Sonar as 'Licensor/ Owner' and Smt. Magdeline David Fernandes as 'Licensee'. He has also produced on record a copy of cheque issued by him in favour of complainant Ganesh Phadke (PW-1) dated 16 th January 2013 for an amount of Rs.5,000/-. It therefore appears that, the complainant was well acquainted with Santosh Nagvekar (A-1) much prior to the date of alleged incident and as their relations got soared due to some financial transaction interse, the complainant lodged the said complaint. This Court finds substance in the defence adopted by Santosh Nagvekar (A-1). As noted earlier, Pradeep Shirke (A-2) never demanded any amount from the complainant (PW-1). The record is also silent about the fact that, Pradeep Shirke (A-2) was having knowledge about the fact that the amount allegedly handed over by Santosh Nagvekar (A-1) to him was proceeds of a crime. 18. As noted earlier, Pradeep Shirke (A-2) never demanded any amount from the complainant (PW-1). The record is also silent about the fact that, Pradeep Shirke (A-2) was having knowledge about the fact that the amount allegedly handed over by Santosh Nagvekar (A-1) to him was proceeds of a crime. 18. In view of the above discussion and after taking into consideration, the entire material available on record, this Court is of the considered opinion that, the prosecution has failed to prove the basic ingredient in a bribery trap case i.e. demand of bribe, by Accused No.1 Santosh Nagvekar. The present Appeals therefore succeed. 19. Hence the following Order:- (i) The Judgment and Order dated 31st January 2017 passed by the learned Special Judge (Under the P.C. Act), Greater Mumbai in A.C.B. Special Case No.1 of 2014 is quashed and set aside. (ii) Appeals are accordingly allowed.