1 crapn2660.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2660 OF 2010 The State of Maharashtra, Through Public Prosecutor, High Court Bench at Aurangabad. ...APPLICANT VERSUS Dr. Anita Apparao Kadam @ Babare, Age: 36 years, Occ: Medical Officer in District General Hospital, Osmanabad, Tq. & Dist. Osmanabad. ...RESPONDENT ... Mr. V.D. Rakh, APP for applicant. Mr. S.J. Salgare, Advocate holding for Smt. Sadhana S. Jadhav, Advocate for respondent. ... CORAM: S.S. SHINDE, J. DATE : 8TH FEBRUARY, 2011 PER COURT : . Heard learned A.P.P. and learned Counsel 2 crapn2660.10 for the respondent. This appeal is filed by the State, challenging the judgment and order dated 16-04-2010 passed by the Special Judge, Osmanabad in Special Case (AC) No.10 of 2009. 2. The respondent herein was charged for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The facts of the case are elaborately stated in the judgment of the Special Court from Para. Nos. 2 to 16. Those are not repeated herein. Suffice it to say that the Special Court framed as many as seven points for its determination. After recording the evidence led by the prosecution, the trial Court has given finding that the prosecution has failed to prove its case that the respondent-accused demanded Rs. 1500/- as illegal gratification other than legal remuneration from the complainant for the purpose of scissoring operation of Sangita Londhe. All 3 crapn2660.10 points are answered against the prosecution. The trial Court has considered the case of the prosecution that there was initial demand on 19-03-2006, however, the Court found that there is no corroboration to the evidence of the complainant on the point of demand. It is the case of the prosecution that there was demand of Rs.1500/-from the complainant for scissoring operation, however, only Rs.500/- was paid on 19-03-2006 and remaining Rs.1000/- was to be paid subsequently. It is admitted position that scissoring operation was performed on 19-03-2006 itself. It has also come on record that from 20-03-2006 till 25-03-2006 the respondent-accused was not on duty. . Even if the prosecution case is taken as it is that on the relevant date, the respondent-accused came to the hospital, however, the fact remains that the alleged amount of bribe was kept inside the papers and it was not directly accepted by the respondent-accused. On appreciation of evidence 4 crapn2660.10 the Special Court held that, the prosecution has miserably failed to prove initial demand or subsequent demand, as stated by the complainant. . It is the case of the prosecution that on 19-03-2006 there was initial demand and thereafter there was repeated demand of Rs.1000/- from the respondent-accused. However, except bare words of the complainant, the prosecution has failed to bring anything on record which could corroborate the evidence of the complainant. This Court in the case of Arjun Bajirao Kale vs. State of Maharashtra, reported in, 2009 ALL M.R. (Cri.) 85, held that demand of bribe is a foundation in a case under Prevention of Corruption Act. Mere acceptance of money, by itself would not be sufficient for the purpose of convicting the accused who is charged with an offence punishable under sections 7,13(1)(d),13(2) of the Act. In the said judgment, this Court has placed reliance on the reported judgment of the Hon'ble Supreme Court in the case of Sat Paul vs. Delhi 5 crapn2660.10 Administration, [A.I.R. 1976 S.C. 294] and also in the case of Pandharinath Shelke vs. State of Maharashtra [2005(2) Bom.C.R. (Cri.) 940]. In another case, this Court in case Avinash Sitaram Garware vs. State of Maharashtra [2008 ALL MR (Cri.) 15] held that if prior demand of money by accused is not proved, rest of the prosecution case will have to be read with great caution and circumspection. 4. The defence taken by the respondent- accused which is reproduced in Para. No.17 of the judgment of the trial Court, reads thus : Þfn- 19-&03&2006 jksth vkWu dkWy eyk vkY;kewGs eh izlqrh okMkZr xsys- rsFks 7-8 is'kaV iSdh laxhrk yksa<s gh ,d gksrh- fryk riklysoj fl>j vkWijs'ku djkos ykxsy ulrk ckG nxkosy vls eh frP;k lkscr nksu efgyk ukrsokbZdkl lkafxrys- R;kph laerh i=koj lgh ?ksowu vkWijs'ku dsys- R;kuarj fn- 25&3&2006 jksth la/;kdkGh ikp oktrk eh ek>h ua.kn dk'khckbZ txnkGs fgl HksV.;klkBh ek>s eqyhlkscr xsys vlrk fQ;kZnhus R;kapk is'kaV rikl.;kl lkafxrys- eh is'kaV riklwu gkr /kqmu eye fygwu nsrs vls Eg.kwu gkr /kq.;kl xsys vlrk fQ;kZnhus fpBhoj eye fygwu n;k Eg.kwu eyk u ekfgr gksrk 6 crapn2660.10 dkxnkr iSls Bsmu rks dkxn ekÖ;kdMs fnyk yxspp iksyhlkauh idMwu [kksVh dsl dsyh-ß . In her defence in last five lines of aforesaid Paragraph, it is stated that, I told the complainant that after examining the patient, I will clean my hands and then I will write down ointment. By saying so, I went to clean my hands. At that time, the complainant, without my knowledge kept currency notes in paper and placed the said paper before me to write down ointment and immediately the police caught hold me and filed false complaint. 5. The Special Court has recorded certain admissions of P.W. No.1 from his deposition before the Court and held in Para-39 thus : "It is admitted by P.W. 1 that the accused gave one prescription in the hands of his wife in order to purchase the aforesaid medicines of Rs.1143/-. This has therefore demolished the story of the 7 crapn2660.10 complainant himself that while giving this prescription to purchase the medicine from out side, the accused told him that she was taking Rs. 3000/- for operation from others but he will have to pay Rs.1500/- and that he paid Rs.500/- to her on that day. It is admitted by P.W. 1 that the accused was not previously known to him. Therefore there was absolutely no probability of accused telling him that as she is resident of Samarth Nagar, she will charge Rs. 1500/-.It is also important to note that the complainant has himself admitted in para 14 that accused was not on duty in delivery ward from 20-03-2006 to 25-03-2006. He did not deny the fact that Shila Umbare suggested him to make a case against accused. He admitted that there was publication of news report of sugar factory in which the father of accused was serving through the news report of Shila Umbre. But he has shown his ignorance whether Shila Umbare was going to Killari Sugar Factory for recovery of bills of publication of news reports and 8 crapn2660.10 whether there was complaints between the father of accused and Shila Umbare at the instance of payment of bills. He admitted in Para-15 that whenever he visited Civil Hospital in the aforesaid period, the accused was found absent and that she was called there by him by making phone calls. Therefore the conduct of the accused and complainant indicate the attempts made by complainant to falsely implicate the accused". (Emphasis supplied). 6. Viewed from any angle, scissoring operation was performed on 19-03-2006. There was no reason for the respondent-accused to further repeat demand. The prosecution has not brought anything on record that there was demand on 19-03-2006 or thereafter there was repeated demand by the respondent-accused except bare words of the complainant. The Hon'ble Supreme Court in the case of State of Maharashtra vs. Dnyaneshwar Laxmanrao Wankhede [(2010) 2 S.C.C. (Cri.) 385], held that the demand of illegal gratification is a 9 crapn2660.10 sine qua non for constitution of an offence under section 7, 13(1)(d) and 20 of the Prevention of Corruption Act. The Hon'ble Supreme Court has further held that prosecution must prove the foundational facts and then only accused can rebut presumption under Section 20 of the Prevention of Corruption Act. The Hon'ble Supreme Court has discussed scope of the powers of the appellate Court in appeal against the acquittal and held that where there are two possible views, one in favour of the prosecution and another in favour of accused, latter would prevail. Therefore, in my opinion, the Special Court has taken possible view. The evidence recorded by the Special Court is in consonance with the evidence brought on record and findings recorded are not perverse. Therefore, there is no infirmity in the judgment and order of the Special Court, which is impugned in this appeal. 7. In the instant case, defence taken by the respondent-accused has been accepted by the 10 crapn2660.10 Special Court. The Special Court has recorded categorical findings after appreciating the evidence and came to the conclusion that theory of demand which is stated by the complainant is not corroborated by the independent witnesses more particularly on the point of initial demand on 19-03-2006. The Special Court, on the basis of material brought before it, has taken a possible view. Even if other view is possible, that is not a ground to interfere in the judgment and order of the acquittal. In my opinion, no interference is called for. Hence, the application seeking leave to appeal is rejected. 8. Registry to send back the Record and Proceedings to the concerned Court, forthwith. [ S.S. SHINDE, J.] sut/feb11/crapn2660.10