Mumbai: The Bombay High Court has recently quashed the order of the session court of considering a doctor guilty of taking a bribe and exonerated him 32 years after the case was registered.
The doctor died two years back and since then the case was being fought by his wife and daughter.
The case concerns Dr Nishkant Kulkarni, a Medical Officer who was asked by one Manohar Mulchandani to issue the death certificate of his brother on 9th September 1987.
According to Mulchandani, to get the death certificate, he requested Dr Kulkarni and there was a demand for Rs.150/by the doctor. Since Mulchandani was incapable of paying the same, the amount was negotiated to Rs.100. He was unwilling to pay the said amount as a bribe and, hence, he approached the office of the Anti Corruption Bureau at Nasik. The ACB upon receipt of the complaint decided to lay a trap
Thereafter, on 9th September 1987, one Dandavate, working as a Joint Director of Animal Husbandry was called upon to act as a panch, more particularly, as a Shadow Witness and to follow the Complainant.
On 9th September 1987, the Complainant Mulchandani along with Panch Dandavate had approached the office of Medical Officer. Upon his arrival and query, the Medical Officer had assured him that he has kept his medical certificate ready. After some time, one employee of the Hospital- the peon called upon Mulchandani and they went to cabin of the Medical Officer. The Medical Officer asked the Complainant to hand over the amount of Rs.100/ to the said peon. The peon had accepted the same. The Complainant then collected the certificate. Thereafter, the raiding party had laid the trap. The tainted notes were seized from the custody of the peon. The first information report was lodged by Dy. S.P. (ACB) on behalf of the State.
On the basis of the said report, the case was registered against the doctor for the offenses punishable under the relevant section of Prevention of Corruption Act and of Prevention of Corruption Act, 1988 and offenses punishable under section 161, 165A of the Indian Penal Code. After completion of the investigation, the charge sheet was filed.
The panch, however died soon after.
The ACP conducted an investigation and arrested the peon. In 2005 the session court held the doctor and peon guilty and sentenced them to imprisonment of one year and six months respectively. They challenged the judgment in the high court.
The High Court went through the previous literature of the case, noting the submissions that there was no proof that the fact that the payment that was made was towards gratification or that the money that was accepted by the peon on behalf of the doctor
The court mentioned previous supreme court judgments that clearly stated
“The allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. Recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe.”
The Apex Court observations further included :
“the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case.”
The Bombay High Court issued an order where it stated-
Suffice to say that in the present case the prosecution has failed to prove that there was no valid sanction from the sanctioning authority to prosecute the present Appellant. It is a matter of record that due to nonexamination of the shadow panch, there is no corroboration of demand and acceptance and the facts which had transpired between Accused No.1 and the complainant preceding the trap laid by the ACB. It is a cardinal principle of criminal jurisprudence that in the case of Prevention of Corruption Act the demand is sine qua non to prove acceptance as bribe or gratification.
The court then set aside the lower court order and absolved the doctor