1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.249 OF 2005 The State of Maharashtra ..APPELLANT -VERSUS- Jitendra Shankarrao Raut ..RESPONDENT ........ Mr.S.D. Kaldate, learned A.P.P. for appellant. Mrs.V.M.Kagne, advocate for respondent. ....... (CORAM : SHRIHARI P. DAVARE, J.) DATE : 19 th July, 2010. PER COURT : 1. Heard Mr.S.D. Kaldate, learned A.P.P. for appellant as well as Mrs.V.M. Kagne, learned counsel for respondent. 2. This is an appeal filed by appellant-State challenging the judgment and order of acquittal dated 11th January, 2005 rendered by Special Judge, Aurangabad in Special Case No. 20/2001, acquitting respondent (original accused) for the offences punishable under Section 7, 13(1)(d) r/w 13(2) of the P.C. Act, 1988 and sought leave to file appeal against the said judgment and order of acquittal. 3. Respondent-accused was charged for the offence under Section 7 of the Prevention of Corruption Act, 1988 for allegedly demanding and accepting the illegal gratification of Rs. 500/- from the complainant on 23.06.2001 for release of liquor, 2 which was seized by the accused and also not to file prosecution against the complainant. To substantiate the charges levelled against the accused, the prosecution has examined four witnesses namely, PW-1-Nanda Jiwanlal Jaiswal-complainant, PW-2-Baburao Sheshrao Arsul-panch witness, PW-3-Narayan Parshuram Tandale-P.I.ACB, Aurangabad-Investigating Officer, PW-4-Khemraj Ekode-Sanctioning Authority i.e. Retired Superintendent, State Excise. Moreover, accused also examined one defence witness namely, Nandkishor Ramchandraji Varma, P.S.I. State Excise, Vaijapur. The alleged date of trap is 23rd June, 2001. It is alleged that the accused demanded an amount of Rs.2500/- from the complainant for the aforesaid work and after negotiation, it was agreed that the complainant to pay Rs.2000/- to the accused. Out of which, an amount of Rs.1500/- already paid to the accused and on the date of trap, complainant paid an amount of Rs.500/- to the accused. 4. The defence of the accused is consistent that complainant made demand of amount of Rs.500/- to the accused towards repayment of hand loan which was borrowed by the complainant from him. After scrutinising and appreciating the evidence on record, the learned trial Judge observed that the evidence of prosecution does not stand to test of sound reasons; whereas defence put forth by the accused stands to the same test as it has got a better foundation, and therefore, the learned trial Judge discarded the evidence of prosecution. The reliance also can be very well placed on the observations made in the case of "Punjabrao V/s State of Maharashtra" reported in "AIR 2002 SUPREME COURT 486, which reads as under : "We have examined the judgment of the learned 3 Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability." 5. In the circumstances, after scrutinizing and appreciating the evidence on record, the view adopted by learned trial Judge is a possible view to be adopted and reasonings given by learned trial Judge, apparently, can not be faulted with and the view taken by learned Judge does not appear to be perverse, and therefore, there is no substance in the prayer made by appellant seeking leave to file appeal and same deserves to be rejected. 6. In the result, the prayer made by appellant-State seeking leave to file appeal against judgment and order of acquittal dated 11th January, 2005 stands rejected and leave to file appeal stands refused and consequently, present appeal stands dismissed. Record and Proceedings be sent back to the concerned Court. (SHRIHARI P. DAVARE), JUDGE gas/cria249.05