SANJAY BALAJI YELGIREversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:40508


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                                                  (1)

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                               CRIMINAL APPEAL NO.397 OF 2007


                 Sanjay Balaji Yelgire,
                 Age: 35 years, Occu: Service
                 as Clerk in S.D.O. Office,
                 Osmanabad, R/o. Gote Niwas,
                 Post Colony, Osmanabad,
                 Tq. & Dist. Osmanabad                            ….APPELLANT

                       VERSUS

                 The State of Maharashtra                         ….RESPONDENT
                                                 …..
                 Mr Joydeep Chatterji, Advocate for Appellant
                 Mr C. V. Bhadane, APP for Respondent/State
                                                 …..
                                          CORAM : SUSHIL M. GHODESWAR, J.

                                 RESERVED ON : 20th AUGUST, 2026

                             PRONOUNCED ON : 04th SEPTEMBER, 2026


                 JUDGMENT :


                 1.          By this appeal, the appellant (accused) has challenged the

                 judgment and order of conviction and sentence dated 27/09/2007,

                 passed by the learned Special Judge, Osmanabad in Special Case (AC)

                 No.02/2006, convicting the appellant for the offence punishable under

                 Section 7 of the Prevention of Corruptio4n Act, 1988 (for short ‘the

                 Act’) and sentenced to suffer one year rigorous imprisonment and to
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pay fine of Rs.1000/-, in default to pay fine, to suffer two months

rigorous imprisonment.     He was further convicted for the offence

punishable under Sections 13(1)(d) read with Section 13(2) of the Act

and sentenced to suffer two years rigorous imprisonment and to pay

fine of Rs.2000/-, in default to pay fine, to suffer four months rigorous

imprisonment.


2.          The prosecution story in short is as under :-


      (a)   Appellant/accused was working as a Clerk with the Sub

Divisional Office, Osmanabad. Complainant Suresh Mahadev Saste is

a labour, resident of Yedshi, Tq. Osmanabad and was working in

Toddy Centre at Yedshi. He was facing a case under Section 93 of the

Bombay Prohibition Act for possessing illegal liquor, in the Court of

Sub Divisional Officer, Osmanabad. On 18/10/2005, at about 2.00

p.m., police took complainant Saste before the Sub Divisional Officer.

Sub Divisional Officer put some endorsement on the report lodged by

Police. Thereafter, Constable Kolekar took complainant Saste towards

the appellant/accused. It is alleged that, accused told complainant that

he will be released, but he will have to pay Rs.1000/- to accused.

Since amount was excessive and complainant was not capable to give

such excessive amount, after negotiation, accused reduced the amount
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to Rs.500/-.     On that day, complainant was having Rs.100/-.

Accordingly, he paid the said Rs.100/- to accused.        The accused

accepted the same. Accused asked complainant to come with a surety

on 21/10/2005 and bring remaining Rs.400/-.

       (b)   On 21/10/2005, complainant went to SDO office

alongwith surety. Appellant/accused prepared requisite papers and

demanded Rs.400/- from him. Since complainant was not having the

said amount, accused asked to pay whatever amount he is having at the

relevant time. Saste was having Rs.50/-, and accordingly, he paid

Rs.50/- to accused.     Thereafter, accused gave him next date as

07/11/2005 and told him to bring remaining Rs.350/- in order to

dispose of his case.

       (c)   On 07/11/2005, since complainant was not willing to pay

bribe, he went to Anti Corruption Bureau Office, Osmanabad at 9.30

a.m.   Accordingly, his complaint was reduced in writing by the

Investigating Officer Mr Nazan/PW-4. Accordingly, after completing

formalities, the trap was laid with the assistance of two panch witness.

The necessary instructions were given by the Inspector Nazan to

complainant, panchas and all the members of raiding team. Thereafter,

at about 12.35, complainant Saste alongwith panch Mali entered the

office of Sub Divisional Officer. Accused took the complainant to
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have tea and accordingly talked about bribe amount and for disposing

of case of complainant.     Accused asked whether he has brought

balance amount. Accordingly, the bribe amount came to be accepted

by the accused from the complainant.       Accused alleged to have

counted the amount and kept in the left hip pant pocket. Thereafter,

complainant gave pre-determined signal and trapping team came there.

      (d)   The tainted notes were recovered from the pocket of

accused. The said notes were put under ultraviolet rays. Shining was

noticed on both the sides of notes.     In the darkness, hands of all

members of raiding team were also put under ultraviolet rays, but they

were not shining.   Hands of accused were put under ultraviolet rays

and were found to be shining.      After completing the formalities,

accused came to be arrested and the FIR came to be registered against

the accused bearing Crime No.67/2005 for the offence punishable

under Sections 7, 13 (1)(d) read with Section 13(2)of the Act. After

completing investigation and after receiving sanction order on

23/01/2006 to prosecute against appellant, charge-sheet came to be

filed on 01/02/2006 before the Court.

      (e)   Charges were framed under Sections 7, 13(1)(d) read with

Section 13(2) of the Act at Exh.12. Accused pleaded not guilty and

claimed to be tried.   The prosecution examined four witnesses in
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support of its case. PW-1/Suresh Mahadev Saste/ complainant was

examined at Exh. 17, who turned hostile. PW-2/Arvind Basappa Mali,

panch witness was examined at Exh.21.           PW-3/Machhindranath

Sadashivrao Devnikar, Sanctioning Authority was examined at Exh.27

and PW-4/Kisan Laxman Najan, Investigating Officer was examined at

Exh.31.


3.          Learned Special Judge, Osmanabad, on the basis of

evidence brought before it, convicted and sentenced the appellant for

the aforesaid offence, and therefore, being aggrieved by the said

judgment and order dated 27/09/2007 of the learned Special Judge, the

appellant has approached this Court by filing present appeal.


4.          Heard learned Advocate Mr Chatterji for the appellant and

learned APP Mr Bhadane for the respondent/State.


5.          According to Mr Chatterji, learned Advocate for the

appellant, the impugned judgment of conviction to appellant is

perverse and contrary to provisions of law. He submits that, if the

deposition of the entire prosecution witnesses is scrutinized, it will

reveal that, no offence punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Act can be proved against appellant. He submits

that the prosecution has failed to prove charges against the accused
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persons. Learned Sessions Court, in order to prove charges against the

accused, is required to observe and hold that there is valid demand,

proper acceptance and recovery of tainted currency notes from the

possession of the accused.     He further submits that the complainant

himself has turned hostile, and therefore, he is not supporting the

prosecution. He then submits that, when complainant himself has not

supported prosecution, his testimony cannot be relied upon by the

Court to convict the appellant. Thus, he submits that there is no

evidence to connect the appellant in the alleged offence.


6.           Mr Chatterji further submits that the complainant was

insisting for disposing of a case filed against him under Section 93 of

the Bombay Prohibition Act, which was pending before the Sub

Divisional officer. By no stretch of imagination, it can be said that the

appellant, being a Clerk, was able to dispose of the said case. As the

adjudication and disposal of case was empowered to the Sub

Divisional Officer, the appellant, being a Clerk in the said office, at all

cannot be said to have asked for bribe to dispose off the case.

Therefore, any demand made by appellant for the purpose of said task

cannot be termed as a bribe, as the act was not committed in discharge

of official duty, which is not assigned to the appellant.
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7.          Another limb of submission of Mr Chatterji is that PW-

2/Arvind Mali, panch witness has admitted in his deposition that he

had read panchnama once or twice previously. Therefore, such a

witness is a tutored witness and his testimony, in absence of

corroboration from complainant, who has already turned hostile,

cannot be relied upon, as the allegations lack supporting evidence on

record. In support of his submission, he relies on the judgment of the

Division Bench of this Court in the matter of Suresh Purushottam

Ashtankar Vs. The State of Maharashtra and another, 2015 ALL

M.R.(Cri.) 4243. According to him, witness can be supplied his

previous statement in the Court, however, at the time when he enters

witness box, but such witness cannot be given or supplied his

statement of previous occasions, for the reasons that, it would amount

to show unnecessary interest on behalf of Police Officer, which would

unnecessarily create doubt about the conduct of Police Officer in the

case.


8.          Mr Chatterji further submits that the accused is shown to

have accepted the bribe amount in a busy area, where there was rush in

the campus. According to the appellant, accused could not accept the

amount in such a crowded area. He then submits that the complainant

had forcibly tried to give money to appellant in order to success the
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trap as per instructions of the raiding team. He, therefore, submits that

the prosecution has not proved the charges against appellant beyond

reasonable doubts, and as such, appellant deserves to be acquitted. He,

therefore, prays for allowing the present appeal.


9.           Per contra, learned APP submits that the prosecution has

sufficiently proved charges against the appellant.         The evidence

recorded by the prosecution is sufficient to impose conviction on the

accused.   According to him, though the complainant has become

hostile, still the other witnesses have proved the charges against the

appellant. He submits that PW-2/Mali, who is independent panch

witness has fully corroborated the prosecution story. According to

him, if money was forcibly thrust into the pocket of appellant, both

hands would not test positive for anthracene powder, as the currency

notes would realistically be pulled out using only one hand. Thus,

according to him, learned Special Judge has committed no mistake by

convicting the appellant, and therefore, he insists that the verdict of the

Sessions Court be maintained by dismissing this appeal.


10.          Having gone through the submissions of the learned

Advocates for both the parties, I have perused the record available

with the Court. It is true that, even if the complainant has turned
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hostile, still the prosecution case can be proved against the appellant

with the assistance of evidence of other witnesses.      However, the

supporting evidence which is required to be proved the charges against

appellant/accused must be free from any doubts and must be clear so

as to attract provisions of the Act.     In this case, admittedly the

complainant came to be declared as hostile. Merely because the

complainant has been declared hostile, his entire testimony does not

stand deleted from the record. The Court is required to examine his

evidence with greater caution and determine whether any part thereof

inspires confidence and receives corroboration from other reliable

evidence. In the present case, however, upon careful scrutiny of the

deposition of PW-1, the prosecution has failed to derive reliable

corroboration from the material portions of his testimony regarding the

alleged demand and acceptance.


11.         The prosecution has, therefore, sought to rely upon

testimonies of panch witness.      However, the panch witness has

candidly admitted that he has read over his previous statement on one

or two occasions. Reliance of learned Advocate for the appellant on

the judgment of Suresh Purushottam Ashtankar (Supra) delivered by

the Division Bench of this Court is important for deciding instant

appeal. In the said judgment, Court had come across with the aspect of
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prosecution witness reading his previous statements on multiple

occasions prior to entering the Court hall. The learned Single Bench

of this Court in the case of Sharad Namdeorao Shirbhate Vs. State

of Maharashtra, 2006 (2) Mh.L.J. (Cri.) 1210, in paragraph No.10,

observed that though the witness was allowed to read over his

statement and police had also asked to tender his evidence as per

statement, there was nothing wrong in the refreshing memory of such

witness, but the said aspect of refreshing memory ought to be made

before the Court and not outside the Court. In order to test the veracity

of a witness, he would be required to recollect the incident out of his

own memory and should be falter on some material aspect and he

could be allowed to refresh his memory with the reference to

contemporaneous record of the incident created by the Police.          It

would not be permissible to such witness to stealthily refresh his

memory before entering the Court and deposing about the entire

evidence giving minute details, as if he was reeling them out of his

memory. The Division Bench has approved the dictum of the learned

Single Judge in the case of Suresh Purushottam Ashtankar (supra)

observing that a witness cannot be permitted to refresh his memory on

previous occasions before entering into Court hall.
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12.         In the case in hand, PW-2/panch witness has candidly

admitted in his statement that he was permitted to read his previous

statement on two or three occasions. Meaning thereby, before entering

the Court room, the witness was privy to all investigation papers,

which clearly demonstrates the undue interest of the prosecution in the

matter. This circumstance substantially affects the reliability of PW-2

and requires his evidence to be scrutinized with greater caution.


13.         Upon careful scrutiny of the evidence, it is clear that the

prosecution was required to establish, beyond reasonable doubt, the

foundational facts of demand and acceptance of illegal gratification.

The factum of recovery of tainted currency notes and the presence of

anthracene powder on the hands of the appellant may constitute

corroborative circumstances, but such circumstances by themselves

cannot substitute the proof of demand and voluntary acceptance of

illegal gratification. In the present case, the complainant has not

supported the prosecution on the material aspects of the alleged

demand and acceptance. Though the evidence of a hostile witness is

not liable to be discarded in its entirety, the material portions of his

testimony must inspire confidence and receive corroboration from

other reliable evidence. On a careful scrutiny, the evidence of PW-1

does not provide such reliable corroboration to the prosecution case.
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14.         The prosecution principally relies upon PW-2 to establish

the circumstances of the trap, including the alleged conversation

regarding the bribe and acceptance of the amount. However, PW-2 has

admitted that his previous statement was read over to him on one or

two occasions before his evidence. In the facts of the present case, this

circumstance assumes significance, particularly when the testimony of

the said witness is the principal independent evidence relied upon to

establish the demand and acceptance. In the absence of dependable

corroboration to the material particulars of demand and acceptance, it

would be unsafe to base the conviction merely on the recovery of

tainted currency and the anthracene test. Consequently, the prosecution

has failed to establish the essential ingredients of the offences charged

beyond reasonable doubt.


15.         It is also necessary to bear in mind that the statutory

presumption under Section 20 of the Act cannot be mechanically

invoked merely because tainted currency notes are recovered from a

public servant. The prosecution must first establish the foundational

facts of demand and acceptance of illegal gratification beyond

reasonable doubt. Once those foundational facts are proved, the

statutory presumption may operate in accordance with law. In the

present case, for the reasons recorded hereinabove, the prosecution has
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failed to establish the foundational fact of demand and voluntary

acceptance by reliable and cogent evidence. Consequently, the

recovery of the currency notes and the result of the anthracene test,

though circumstances appearing against the appellant, are insufficient

by themselves to sustain the conviction.


16.          In view of aforesaid observations, conviction cannot be

based on the basis of evidence brought by the prosecution before the

learned Sessions Court. Hence, the prosecution has failed to prove

charges against the appellant. Thus, appellant has made out a case and

this appeal deserves to be allowed. Hence, I pass the following order:-


                              ORDER


(I)    The Criminal Appeal is allowed.


(II)   The judgment and order of conviction and sentence dated

27/09/2007, passed by the learned Special Judge, Osmanabad in

Special Case (AC) No.02/2006, convicting him for the offence

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

Prevention of Corruption Act, 1988, is hereby quashed and set aside.


(III) The appellant/accused is acquitted of the offence under the Act,

for which he was charged.
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(IV) The bail bond of the appellant, if any, stands cancelled. The

surety, if any, stands discharged.


(V)   The fine amount, if any deposited by the appellant pursuant to

the order of Trial Court, shall be refunded to him, after due

verification.




                                       [SUSHIL M. GHODESWAR, J.]

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