SAKHARAM S/O. MOTIRAM WAWHALEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:43412


                                             *1*                 apeal378o09


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO.378 OF 2009

                Sakharam s/o Motiram Wawhale,
                Age : 49 years, Occ : Helper,
                MSEDC, Fuse Call No.5,
                Basmath Road, Parbhani,
                R/o Sakhala Plot, Parbhani.
                                                    ...APPELLANT
                                                    (Orig. Accused)

                      -VERSUS-

                The State of Maharashtra.
                                                    ...RESPONDENT

                                               …
                Shri R.N. Dhorde, Senior Advocate a/w Shri Harshavardhan
                Shinde, Advocate i/by Shri Vikram R. Dhorde, Advocate for the
                appellant/ accused.
                Shri M.A. Aher, APP for the respondents/ State.
                                               …

                                  CORAM : SUSHIL M. GHODESWAR, J.


                                  Reserved on : 20 August 2026

                                  Pronounced on : 23 September 2026


                JUDGMENT :-

                1.          The appellant is challenging the judgment and order

                dated 21.07.2009 passed by the learned Additional Sessions

                Judge, Parbhani, in Special Case No.1/2008, whereby, the
                               *2*                  apeal378o09


learned Additional Sessions Judge was pleased to convict the

appellant under Section 7 and Section 13(1)(d) read with Section

13(2) of the Prevention of Corruption Act. By the impugned

judgment and order of conviction, for the offence under Section

7, the appellant is sentenced to suffer rigorous imprisonment for

six months and to pay fine of Rs.1000/- and in default, to suffer

rigorous imprisonment for one month. For the offence under

Section 13(1)(d) r/w 13(2), he is sentenced to suffer rigorous

imprisonment for one year and to pay fine of Rs.1000/- and in

default, to suffer rigorous imprisonment for one month. Both the

sentences are directed to run concurrently.


2.          The brief facts of the case are as under:-


      (a)   The      complainant      PW-1,     namely,           Jiwan

Bhimashankar Swami had constructed five small shops in front

of his house. He was intending to have new electric connection

for his shop premises. Therefore, he had applied for getting new

electric connection and paid Rs.1125/- as installation charges to

the MSEB (Electricity Board). The junior engineer, namely, Shri

Jogdand had directed the appellant/accused, who was lineman, to

take necessary steps to fix the meter for giving new connection in
                               *3*                apeal378o09


the premises of complainant.


      (b)   On 11.9.2007, when the complainant met appellant,

it was told to him that connection is not being given free of

charge and unless Rs.500/- is paid, the new meter shall not be

installed. At around 12:30 in the noon, the complainant went to

the ACB office and lodged the complaint against the appellant.


      (c)   The ACB officer called two panchas, then pre-trap

panchanama was drawn. The five currency notes of Rs.100/-

denomination each were produced by the complainant. The

anthracene powder was applied to it. The notes were kept in the

right pant pocket of the complainant. All instructions were given

to the complainant and panchas.


      (d)   After completing all formalities, the complainant

and panch No.1 went in the premises of fuse call center and other

members of the trap had taken necessary position. After 15

minutes, the appellant with one person came on motorcycle. The

complainant greeted him and asked him why the electric meter is

not installed yet. The appellant told him that he had already

informed him to pay Rs.500/- and as the same is not paid,

therefore, meter is not installed. When the complainant took his
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hand towards pant pocket, the appellant told him that he should

pay the amount at his home, as he would install the meter at his

home.


        (e)   Accordingly, the complainant and panch witness

(PW-2) Kailash Sharma went towards the house of the

complainant. The accused and his companion were standing

there. The complainant provided GI wire and service wire from

his house to the appellant. The appellant accordingly started work

at the shop premises which were in front of the house of the

complainant. The electric supply of DP was disconnected and

meter was fixed in the shop premises of the complainant. Then

the appellant came near the complainant and said that the work

was done. The complainant said thank you. They all sat in the

hall of the house of the complainant. The complainant offered

them tea. Then, the appellant-accused told that the work was

done and the complainant should pay the amount as agreed. The

complainant removed Rs.500/- tainted currency notes kept in his

pocket and offered it to the appellant by his right hand. The

appellant accepted the amount, counted the notes and kept it in

his shirt pocket.
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      (f)   Then the complainant went outside and gave

requisite signal by swinging the handkerchief. The members of

the raiding party entered the house. Mr. Pande caught hold the

hands of the appellant. Thereafter, necessary formalities were

completed. Tainted notes were removed from the shirt pocket of

the appellant. The hands and the shirt pocket of the appellant and

the currency notes were observed under the ultraviolet lamp and

anthracene powder was found shining green. Accordingly, FIR

was lodged and Crime No.3033/2007 was registered for the

offences punishable under Sections 7, 13(1)(d) read with 13(2) of

the Prevention of Corruption Act against the appellant.


      (g)   Investigation was set into motion. The statements of

witnesses came to be recorded and the final report was submitted

to the office of Superintendent of Police, ACB, Nanded, to obtain

sanction to prosecute the appellant. The papers were sent to the

sanctioning authority i.e. Executive Engineer, MSEB, to obtain

sanction to prosecute the appellant. Sanction was granted and

after completing the investigation chargesheet was submitted

against the appellant. At exhibit 10, the charge came to be framed

against the appellant. The appellant pleaded not guilty and
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claimed to be tried.


      (h)    The prosecution has examined in all seven witnesses

to prove the charge. PW-1 is the complainant, namely, Jiwan

Swami. PW-2 is panch No.1, Kailash Sharma. PW-3 Mirza Ali

Baig is the sanctioning authority. PW-4 is Pandernath Bhosale,

Dy.SP PW-5 is Namdev Nalge, panch No.2. PW-6 is Bandu

Bhujbal, Electrician. PW-7 Dilip Bhagwat, PI of Anti-Corruption

Bureau.


      (i)    After recording the evidence and hearing the learned

counsel for the parties, the learned Additional Sessions Judge,

Parbhani, vide impugned judgment and order dated 21.07.2009,

was pleased to convict the appellant for the offences punishable

under Section 7 and 13(1)(d) read with 13(2) of the Prevention of

Corruption Act, 1988, and sentenced him to suffer as noted

above.


      (j)    Being aggrieved by the aforesaid judgment, the

appellant has preferred the instant criminal appeal.


3.           Shri R.N. Dhorde, the learned Senior Advocate

appearing for the appellant/ accused, submitted that the
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prosecution has not at all established its case beyond all

reasonable doubts. The evidence brought before the trial court is

not at all trustworthy. The witnesses have not at all corroborated

each other and as such, there is no case made out against the

appellant.


4.           Shri Dhorde further submitted that in order to

convict the appellant for the offences punishable under Sections

7, 13(1)(d) r/w Section 13(2), the prosecution is required to prove

that there was valid demand and acceptance and recovery from

the accused. However, the evidence brought by the prosecution

against the appellant is itself very doubtful and not convincing, as

such, same cannot be relied upon. He further submitted that in

absence of strong proof as regards the demand and acceptance

and as there is also no corroboration from the surrounding

witnesses, the testimony of the complainant is, therefore, cannot

be considered as trustworthy. He, therefore, submitted that the

prosecution having failed to establish its case beyond all

reasonable doubts, the impugned judgment and order passed by

the learned trial court is required to be quashed and set aside by

acquitting the appellant.
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5.          Shri Dhorde pointed out the evidence of pancha

witnesses and the complainant himself and submitted that the

prosecution failed to prove that appellant has demanded money,

as there is no specific evidence for arriving at a conclusion that

the appellant has made any demand to PW-1 complainant.

According to the learned Senior Advocate, the complainant has

not brought the GI wire, but he has asked the appellant to bring

the said GI wire and therefore, the appellant has brought the GI

wire and fixed the electric meter. However, the Trial Court has

disbelieved the fact that the appellant has brought the said GI

wire and erroneously held that the service wire and GI wire had

been brought by the complainant, in the absence of evidence on

the record to support that the complainant has brought the GI

wire. It has come on record that the appellant has demanded the

GI wire from the complainant before installing the meter. There

is nothing to say that the said GI wire has been purchased by the

complainant as no such receipt is produced on record. Thus, the

amount which is paid by the complainant was towards the

charges of the said GI wire.


6.          Shri Dhorde further submitted that it has come in
                               *9*                   apeal378o09


evidence of PW-1 complainant that when he went near the ACB

officers vehicle, they asked him as to why they have returned.

The complainant told them that the accused has not accepted the

money. The evidence further discloses that the appellant asked

them to pay them money after the work is over. Thus, the

evidence as regards the demand and paying the amount would

show that the appellant had even refused to accept the said

amount. Had it been the intention of the appellant to receive the

amount, he could have easily accepted the amount when it was

offered to him. However, there is record to show that the

appellant when tried to be given the alleged bribe amount, has

refused to accept it. In such quality of evidence, the appellant

cannot be held guilty for the alleged offences.


7.           Shri Dhorde further submitted that the sanctioning

authority, which has been examined by the prosecution, cannot

be relied upon as the sanction ordered by the said authority is on

the basis of draft sanction order and without application of mind.

Shri Dhorde has taken this court through the evidence of PW-3

sanctioning authority to point out that upon confronted with the

sanction order, the said sanctioning officer has replied that he has
                               *10*                  apeal378o09


seen the spot panchanama and other documents before granting

the sanction. However, perusal of the sanction order discloses

that it is issued on the basis of draft sanction order, and there

appears no application of mind, and particularly which

documents have been perused by the sanctioning authority while

according sanction is not at all mentioned, and as to how the said

authority has come to the conclusion for issuing the sanction

order, is also not specifically stated. Therefore, Shri Dhorde

submitted that the sanction order is not a valid sanction as per the

requirement of law, and therefore, same cannot be relied upon by

the court while taking cognizance of the matter.


8.           Shri Dhorde further submitted that there is no

corroboration by the panch witnesses to the testimony of the

complainant. On the basis of such evidence, it is very

inappropriate to convict the appellant. The evidence of the

prosecution does not inspire confidence, as it is seen from the

record that when the work of the appellant of installing the meter

was over and they were about to leave, the complainant himself

took them to his house and offered them tea. After having the tea,

he has offered the amount of tainted currency notes to the
                               *11*                 apeal378o09


accused. It is not clear as to why the complainant has not offered

the amount at the shop premises itself, when the work of the

appellant was already over and the appellant could have easily

accepted the amount at the said place. Hence, the evidence of the

complainant as regards paying the bribe amount in order to bring

success to the trap, goes to show that the complainant was having

grudge against the appellant. The fact that the appellant had not

accepted the money at the shop premises would infer that he had

not made demand and he never intended to accept the money for

installation of meter. In the teeth of such evidence, the appellant

does not deserve to be convicted under the offences charged

against him on the basis of evidence brought by the prosecution.

Shri Dhorde, therefore, prayed for acquittal of the appellant by

allowing the instant criminal appeal.


9.          In support of his above submissions, Shri Dhorde

has relied upon the following judgments:-


      (a)    Neeraj Dutta vs. State (Govt. of NCT of Delhi), AIR

2023 SC (Criminal) 631.


      (b)   State of Kerala and another vs. C.P. Rao, (2011) 6

SCC 450.
                               *12*                 apeal378o09


       (c)   A. Subair vs. State of Kerala, 2010 ALL SCR 1115.


       (d)   Subash Parabat Sonvane vs. State of Gujarat, AIR

2003 SC 2169.


       (e)   P. Satyanarayana Murthy vs. District Inspector of

Police, State of Andhra Pradesh and another, (2015) 10 SCC 152.


       (f)   Mukhtiar Singh vs. State of Punjab, (2017) 8 SCC

136.


       (g)   Salimkhan Sardarkhan vs. State of Gujarat, AIR

1986 SC 307.


       (h)   State of Maharashtra vs. Dnyaneshwar Laxman Rao

Wankhede, 2009 AIR SCW 5411.


       (i)   Paritala Sudhakar vs. State of Telangana, AIR

Online 2025 SC 457.


10.          Per contra, Shri Aher, the learned APP for the

respondent/ State, strongly opposed the instant appeal. He

submitted that on the basis of evidence brought before the trial

court, it is sufficiently clear that the prosecution has proved its

case beyond all reasonable doubts. The evidence of the
                                 *13*               apeal378o09


complainant as well as the panch witnesses is found to be truthful

and there are no doubts in their testimony and as such, it inspires

confidence. He further submitted that the complainant as well as

the other witnesses have in unequivocal terms clearly stated that

the appellant has demanded and accepted the amount and same is

recovered from his possession. It is also found that the appellant

in presence of the panch witnesses, has demanded and accepted

the tainted amount. The said amount has been recovered from the

possession of the appellant in presence of panch witnesses.


11.         The learned APP further submitted that there is no

procedural flaw as regards the investigation as well as recording

the evidence by the prosecution against the appellant. The

learned trial court has committed no error while convicting the

appellant accused for the offences charged against the him. The

appellant having accepted the tainted amount and same having

been recovered from his possession, is therefore liable to be

convicted and punished for the charged offences. The learned

trial court as such has not committed any error in passing the

impugned order, therefore, same requires to be maintained by

dismissing the instant appeal.
                                *14*                  apeal378o09


12.          After hearing the learned counsel for the rival parties

and going through the evidence on the record, it is clear that for

the case under the Prevention of Corruption Act, the prosecution

is required to establish by adducing very clear and cogent

evidence that there is valid demand and acceptance. The basic

requirement of demand is required to be proved beyond all

reasonable doubt. In order to prove the charges for the offence

punishable under Section 13(1)(d) r/w Section 13(2) of the

Prevention of Corruption Act, the proof of demand of illegal

gratification is absolutely necessary as it is sine qua non of the

offence. If the prosecution fails to prove this demand of illegal

gratification, the charge for the aforesaid offences would fail. It is

clearly established in several judgments delivered by the Hon’ble

Supreme Court including the judgment in Neeraj Dutta vs. State

(Govt. of NCT of Delhi) reported in AIR 2023 SC (Criminal)

631, that mere possession and recovery of currency notes from

the possession of the accused without proof of demand would not

establish the offence under under Section 13(1)(d) r/w Section

13(2) of the Prevention of Corruption Act. In absence of proof of

demand and illegal gratification and use of corrupt or illegal

means to obtain any valuable or pecuniary advantage, it cannot
                               *15*                 apeal378o09


be said that the offence of taking bribe is proved. Thus, the proof

of demand has been held to be indispensable ingredient.


13.         The foundational facts of the aforesaid parameters

are required to be followed by the prosecution in order to

establish the charges against the appellant. In view of the

aforesaid guidelines and the provisions of the Prevention of

Corruption Act, it is to be seen that whether, the prosecution has

established the guilt of the accused beyond all reasonable doubts.

In this case, initially the complainant PW-1 stated to have

approached to the office of the MSEB on 07.09.2007 and he

alleged to have deposited the demand amount for installing the

new meter at his commercial premises. However, till 11.09.2007,

since nobody had come to install, therefore, he again went to the

MSEB office and met the engineer Jogdand. The said engineer

informed him that his work will be completed by the appellant.

Thereafter, the appellant is alleged to have demanded the amount

of Rs.500/- and is alleged to have stated that until and unless the

said amount is paid, the work of the complainant will not be

done. The complainant thereafter approached to the ACB office

and his complaint came to be reduced into writing. The said
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activities were completed till 4:30 PM at the office of ACB.

Thereafter, the parties went to the fuse call center to execute the

trap. However, the complainant when offered the amount to the

appellant, he alleged to have told him that he would accept the

amount after the work is done. Then there is evidence to show

that the GI wire was given to the appellant. After receiving the

said wire, the appellant has started the work. The prosecution

could not establish as to who had purchased the said GI wire and

who had brought this wire which was installed at the electric

poles for facilitating the electric connection at the commercial

premises of the complainant. After the work is over, the

complainant is alleged to have asked the appellant and others to

come to his house, which was in front of the shop premises. It

has come on record that, the appellant was also having one

private labourer and after the work was over, they were about to

leave, however, the complainant instead of paying the tainted

amount to the appellant, took them to his house and offered them

tea. However, the prosecution has not brought on record

satisfactory evidence to establish the nature and purpose of the

amount of Rs.500/- allegedly demanded by the appellant. The

evidence regarding the GI wire and service wire, which were
                               *17*                 apeal378o09


admittedly supplied before the meter was installed, is not

sufficiently clear as to who had procured the same and whether

any amount was payable towards such material or related work.

The prosecution has also not produced any documentary material

to establish that the complainant had incurred no such

expenditure. More importantly, the circumstances in which the

amount came to be offered and accepted, namely, after

completion of the work and after the complainant had taken the

appellant and the accompanying person to his house, coupled

with the appellant's earlier response that the amount would be

accepted after completion of the work, create a reasonable doubt

as to whether the amount accepted by the appellant was proved to

be illegal gratification pursuant to the alleged demand.


14.         It is also significant that when the complainant

initially offered the tainted amount to the appellant at the fuse

call centre, the appellant did not accept the same and stated that

the amount could be paid after completion of the work.

Thereafter, the appellant proceeded to install the electric meter.

The evidence relating to the purpose for which the amount of

Rs.500/- was paid, the circumstances in which the amount came
                                *18*                 apeal378o09


to be offered after completion of the work, and the absence of

clear evidence regarding the procurement and payment for the GI

wire, taken cumulatively, do not establish beyond reasonable

doubt that the amount accepted by the appellant was illegal

gratification. The prosecution having failed to establish this

essential link in its chain of evidence, the appellant is entitled to

the benefit of reasonable doubt.


15.          Another aspect which is required to be considered

while dealing with the case in hand is as to whether, the sanction

order issued by the authority is in accordance with law. Bare

perusal of the order would reveal that the sanction order is issued

in mechanical manner because the contents therein clearly

indicate that it was issued in routine manner, without application

of mind. In the sanction order, it is observed that the case of the

appellant was referred to it and certain documents of the police

case were also referred and same have been perused, and

thereafter, the sanction order is issued. However, the sanctioning

authority did not explain as to what made it to arrive at a

conclusion that the appellant is required to be prosecuted before

the trial court and in absence of such expression, it can be said
                                *19*                   apeal378o09


that the sanctioning authority did not apply its independent mind

while issuing the sanction order. It is true that mere use of a draft

sanction order, by itself, would not render the sanction invalid.

However, in the present case, the evidence of the sanctioning

authority, read with the contents of the sanction order, does not

satisfactorily   establish   that   the   authority    independently

considered the material placed before it and arrived at the

requisite satisfaction for according sanction. The sanction order

merely records that certain papers were referred to and perused,

without disclosing any indication of independent consideration of

the material facts constituting the alleged offence. In the facts

and circumstances of the present case, therefore, this Court is

unable to hold that the statutory requirement of application of

mind    before   according    sanction    has   been     satisfactorily

established by the prosecution. The sanctioning authority thus

has issued the sanction order in routine and mechanical manner,

and therefore, it cannot be considered as a valid sanction to

prosecute the appellant.


16.          Since this Court, on appreciation of the evidence,

has found that the prosecution has failed to establish beyond
                               *20*                  apeal378o09


reasonable doubt the foundational fact of demand of illegal

gratification and the acceptance/obtainment of the amount as

illegal gratification pursuant thereto, the question of drawing the

presumption under Section 20 of the Prevention of Corruption

Act does not arise.


17.          In view of the foregoing discussion, this Court is of

the considered view that the prosecution has failed to establish

beyond reasonable doubt that the amount accepted by the

appellant represented illegal gratification pursuant to a prior

demand. So also, there is no valid sanction to prosecute the

appellant. Consequently, the foundational facts necessary to

sustain the conviction under Section 7 and Section 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act have not

been established. Mere recovery of the currency amount, in the

absence of proof of demand of illegal gratification, cannot

sustain the conviction. The appellant is, therefore, entitled to the

benefit of doubt. Accordingly, the following order is passed:


                             ORDER
(i)    The Criminal Appeal is allowed.

(ii)   The impugned judgment and order dated 21.07.2009
passed by the learned Additional Sessions Judge, Parbhani, in
                                        *21*                apeal378o09


      Special Case No.1/2008, convicting and sentencing the appellant
      for the offences punishable under Section 7 and Section 13(2)
      read with Section 13(1)(d) of the Prevention of Corruption Act,
      1988, is quashed and set aside.

      (iii)    The appellant/accused is acquitted of the offences with
      which he was charged.

      (iv)     The appellant is on bail. His bail bond stands cancelled and
      the surety, if any, stands discharged.

      (v)      The fine amount, if deposited, be refunded to the appellant.

      (vi)     The record and proceedings be sent back to the concerned
      Court.



kps                                     (SUSHIL M. GHODESWAR, J.)