1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.503 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: Shrihari P. Davare, J. Date : 08.03.2011. 1. Heard Shri V.D. Rakh, learned A.P.P. for the applicant. 2. This is an application preferred by the State, seeking leave to file appeal challenging the judgment and order dated 15.12.2010 rendered by the learned Special Judge, Osmanabad, in Special Case (AC) No.13 of 2009, thereby acquitting the respondent-original accused of the offence punishable under Section 8 of the Prevention of Corruption Act. 2 3. After considering the submissions advanced by the learned A.P.P. for the applicant- State and having perused the impugned judgment and order dated 15.12.2010, it appears that the prosecution examined inasmuch as three witnesses to substantiate the charge levelled against the accused, namely, (i) PW-1 Shaikh Anis Amir Hamja who is complainant, (ii) PW-2 Yeshwant Gorba Sontakke-panch and (iii) PW-3 Govind More who is Police Head Constable and examined as shadow witness, since the Investigating Officer, Dy.S.P., Shri Mohammed Yunus Shaikh expired on 20.8.2009. 4. The allegation against the accused is that he demanded an amount of Rs.5000/= from the complainant as gratification, promising him to do his work of passing the truck. However, on the request of the complainant, the said amount of gratification was reduced to Rs.4000/=. 3 5. The defence of the accused is that he never worked as R.T.O. agent in the office of the Deputy R.T.O., Osmanabad and the complaint of the complainant was against R.T.O. Bansode, but the surname of the accused also being Bansode, he is falsely implicated in the aforesaid case, by the Investigating Officer, Dy.S.P. Shri Mohammed Yunus Shaikh and his companions. Pertinently, the complainant also stated in his deposition that R.T.O. Bansode demanded Rs. 5000/= for signing the fitness form for passing his truck. The complainant, even did not identify the accused before the court. He stated that the accused before the court was not R.T.O. Inspector who had demanded bribe of Rs.4000/= and ultimately, deposed that he did not have any complaint against the accused who was present before the court. 4 6. Accordingly, the complainant was declared hostile and was cross-examined by the prosecution, wherein he stated that the Investigating Officer Dy.S.P. Shri Mohammed Yunus Khan, obtained his signatures on blank papers, and further stated that even the handwriting (Exh.23) is not his handwriting, but the same is of the Investigating Officer, Deputy S.P., Shri Mohammed Yunus Shaikh. Moreover, the complainant also stated that the complaint was submitted by him in his own handwriting, to Deputy S.P. Mohammed Yunus Shaikh, but that complaint has not come on record. Accordingly, testimony of PW-1 complainant is of no aid and assistance to the case of the prosecution. 7. As regards testimony of PW-2 Panch Yeshwant Sontakke, he stated that one written complaint was given by complainant Anis Shaikh 5 in the office of the Dy.S.P. wherein it was stated that bribe of Rs.4000/= was demanded by the R.T.O. Inspector for the work of passing the truck and, therefore, it is apparent that the demand of bribe allegedly made by accused, as agent of the R.T.O. Inspector for the purpose of passing the truck, has not been proved by the said panch witness. 8. Moreover, PW-2 panch witness admitted that there is difference in the description of the currency notes of bribe mentioned in the pre-trap panchanama, and those mentioned in the trap panchanama. He admitted that all currency notes produced by the complainant at the time of pre-trap panchanama were not found with the accused at the time of trap panchanama. Further, the place of occurrence of the incident was also changed by this witness, by stating that the incident happened in the registration section 6 of the RTO office, and nothing happened at the enquiry section at the western side of the office. It is also deposed by him that the amount of Rs. 7650/- found with the accused was not seized and, according to him, it is not mentioned in the panchanama that the amount of Rs.7650/- was seized. 9. In view of the inconsistencies and shortcomings, the trial court did not believe the said panch witness also, and there appears to be no flaw in the reasoning adopted therefor, by the learned trial court. 10. Besides that, since the Investigating Officer, Dy.S.P. Mohammed Yunus Shaikh expired on 20.8.2009, PW-3 Police Head Constable Govind More was examined as shadow witness, who admitted that there is difference in the number of currency notes mentioned in the 7 pre trap panchanama and the trap panchanama. It is also observed that there is nothing on record to show that the ultra violet lamp was used for the purpose of testing, by making dark or any opportunity was given to the accused to take search of the panchas and members of the trap party and that the intentional demand and acceptance of Rs.4000/= by the accused from the complainant as bribe amount for the work of passing truck, is not proved. Moreover, PW-3 Govind More admitted that the activities happening inside the building were not visible from the spot, so also the talk inside the building was also not audible from the place where he was standing, and therefore, the trial court observed that he cannot be construed as direct witness to the activities happened pre trap and post-trap panchanamas, and that he can never enter into the shoes of the Investigating Officer, and ultimately, the trial court negated his evidence 8 for proving the charges levelled against the accused, and no fault can be found in the reasoning adopted by the trial court, therefor. 11. In the circumstances, the view adopted by the trial court, after assessing and analyzing the evidence before it, appears to be a probable view and no interference therein is called for, in the appellate jurisdiction. Moreover, the findings recorded by the learned trial court, also do not appear to be perverse, as well as the reasoning given by the trial court therefor, also cannot be faulted with, and hence, present application bears no substance and deserves to be rejected. 12. In the result, present application, which is sans merits, stands rejected, and leave to file appeal stands refused. pnd/criap503.11 (SHRIHARI P. DAVARE, J.)