1 criap-3868.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION 3868 OF 2010 The State of Maharashtra Applicant versus Namdeo Masnaji Kalyanpad Respondent -------- Shri V.G. Shelke, A.P.P. for the applicant-State. Shri B.R.Kedar, Advocate, for the respondent. -------- Coram : Shrihari P. Davare, J. Date : 28th April, 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the applicant-State, seeking leave to file appeal challenging the judgment and order dated 8.6.2010 rendered by learned Special Judge, Osmanabad, in Special Case (AC) No.12 of 2009, thereby acquitting the respondent (original accused) for the offences punishable under Sections 7, 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. 2 criap-3868.10 03. It appears that at the relevant time the accused was working as Senior Clerk in Establishment Section, Zilla Parishad, Osmanabad, and the complainant was serving as ring-man in Ground Water Survey Development Agency, Zilla Parishad, Beed. The complainant was in need of non drawal certificate from the Deputy Engineer, Technical, GWSDA, Zilla Parishad, Osmanabad. It is also alleged that on 30.3.2009, there was conversation on mobile phone between the complainant and the accused and the accused allegedly demanded Rs.5000/= from the complainant for giving the non drawal certificate, and finally on negotiations, agreed to do the said work on payment of Rs.1500 or Rs.2000/=, and time for said payment was allegedly fixed between 12.30 p.m. to 2.00 p.m. on the same day. It is also alleged that the complainant came from Beed to Osmanabad on the same day, after telephonic talk in the morning with the accused, and reached Osmanabad at about 1.30 p.m. and approached directly the office of ACB, and although time for payment of money to the accused was fixed between 12.30 p.m. to 2.00 p.m., he went to the office of the accused at 4.00 p.m. Thereafter, trap was laid, 3 criap-3868.10 after observing necessary formalities and it is alleged that an amount of Rs.2000/= was given by the complainant to the accused, as bribe and non drawal certificate was handed over by accused to the complainant, and the accused was caught hold and further necessary formalities were observed, and after completion of investigation, charge sheet was filed against the accused. 04. To substantiate the charges levelled against the accused, the prosecution has examined as many as four witnesses, namely, PW-1 Shaikh Imam Sardar Complainant PW-2 Juberi w/o Kauser Jahahyder Panch witness. PW-3 Irfan Shah Ibadshah Dy. Director, GWSDA, Sanctioning Authority. PW-4 Pratap Kulkarni Shadow witness for Dy. S.P. Mohammed Yunus Shaikh, who expired on 20.8.2009 4 criap-3868.10 05. I have perused the record and proceedings, as well as impugned judgment and order dated 8.6.2010 with the assistance of learned counsel for the parties and also considered the submissions advanced by them. 06. As regards the sanction, it appears that PW-3 (Sanctioning Authority) received the investigation papers comprising of about 113 pages, on 13.7.2009 and he accorded the sanction on the very day itself. It appears from the deposition of PW-3 that he was unable to tell at what time he received investigation papers on 13.7.2009 and at what time he accorded the sanction on the same day. He did not state that although investigation papers contained 113 pages, he applied his mind and thereafter granted sanction on the very same day on which he received the papers. Moreover, he did not state in his deposition that he read the papers so as to show how prima facie case was made out against the accused. He also admitted that he had received the draft sanction order along with the investigation papers. Hence, learned trial court, on considering 5 criap-3868.10 the admissions in the deposition of PW-3, rightly observed that the sanction order issued by PW-3 being signed by him on the very day of receipt of investigation papers itself, was without application of mind to the facts of the case, and further rightly answered the said point in the negative, and there is no flaw in the reasoning given therefor. 07. Moreover, admittedly, the accused was working in the establishment section, whereas the work of issuance of non drawal certificate was with accounts department, and in fact, Deputy Engineer was the competent authority to issue the said certificate, and the accused was in no way competent person for doing the said work, since he was simply working as Senior Clerk in the establishment department, and the said aspect also diminishes the credibility of the prosecution case. 08. Apart from that, learned Counsel for the respondent- accused invited my attention to the fact that the pre-trap panchanama discloses that amount of Rs.4000/= was agreed to be paid, whereas the amount allegedly recovered from the 6 criap-3868.10 accused was only Rs.2000/= and there is no explanation as to what happened to the balance amount of Rs.2000/=. It is also pointed out that the alleged prior demand was made by the accused on mobile phone and the final demand was allegedly made by him in his office in front of the accused in the presence of other staff members, but the panch witness was out of the office, at the same time. 09. Besides, the learned trial court also observed that there are variances in the testimonies of PW-1 complainant and PW-2 panch in respect of demand and acceptance of the bribe amount, and the reasoning adopted by learned trial judge therefor, apparently, cannot be faulted with. 10. In the circumstances, the view adopted by the learned trial court, after scrutinizing and appreciating the evidence, while acquitting the accused, is a possible view to be adopted and same does not appear to be perverse, and therefore, no interference therein is called for, in the appellate jurisdiction, and therefore, application deserves to be rejected. 7 criap-3868.10 11. Hence, present application stands dismissed, and leave to file appeal is refused, and the present application stands disposed of, accordingly. Record and proceedings be sent back to the concerned court. pnd/criap-3868.10 (Shrihari P. Davare, J.)