( 1 ) cria1457.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1457 OF 2010 The State of Maharashtra .. Applicant [Ori.complainant] Versus Mohan Dattatraya Bhave .. Respondent [Ori.accused] Mr. S.G. Nandedkar, A.P.P. for the applicant. Mr. Vijay Sharma, Advocate for the respondent. CORAM : SHRIHARI P. DAVARE, J. DATED : 23.03.2011 P.C. :- 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicant/ State seeking leave to file appeal challenging the judgment and order of acquittal dated 24.12.2009, rendered by the Special Judge, Jalgaon, in Special Case No. 4 of 2008, thereby acquitting the respondent herein i.e. original ( 2 ) cria1457.10 accused for the offences punishable under Sections 7 & 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. 3. The factual matrix of the matter is as follows:- . That the father of the complainant owns agricultural land Gat No. 232, admeasuring 4-H 4-R in village Samrod, who partitioned the same between the complainant and his brother Subhash and their shares were also mutated in their names. On 25.01.2007 the complainant made an application through his father to the Tahsildar for effecting Khate-Phod of their shares. However, the Tahsildar, Jamner, instructed him that before Khate-Phod, it was necessary to measure the land and boundaries are demarcated of their respective shares. Hence, the complainant went to the Office of Taluka Inspector of Land Record, Jamner. The accused/respondent herein was serving as Shirastedar in the office. The complainant met him and accused told him the charges of measurement fees i.e. Rs.500/- for ordinary measurement, Rs.1000/- for urgent measurement and Rs.1500/- ( 3 ) cria1457.10 for very urgent measurement. Accordingly, the complainant deposited Rs.1500/- towards very urgent measurement on 17.04.2007, in the State Bank of India, Jamner Branch, by challan and made application to Taluka Inspector of Land Record ,for measurement of his land, affixing copies of 7x12 extract and challan. Accordingly on 15.08.2007 the Officers of Taluka Inspector of Land Record, came to the field of the complainant for measurement, but since standing crop was there, they stated that measurement was not possible and hence they went back. After reaping the said crop, the complainant again went to the office of Taluka Inspector of Land Record and met the accused. Thereafter, the accused informed him that half of the fees deposited by him was forfeited to the State, so he was required to deposit further Rs. 750/- by challan. It is alleged that thereafter again complainant went to the accused. The accused informed him that he had to deposit measurement fee of Rs. 750/- and further told him that after depositing said amount if he pays Rs. 1000/- for measurement of his field, the measurement would be done at the earliest, otherwise he would wait for 7-8 months. However, the complainant told him that he would ( 4 ) cria1457.10 deposit fees as per Government rules. Thereafter, on 30.01.2008, the complainant went to the accused, got the challan filled from him and deposited an amount of Rs. 750/- in the State Bank of India, Jamner Branch and went to the accused taking copy of the challan and handed it over to him. At that time the accused enquired with the complainant whether be brought an amount of Rs. 1000/-. Thereafter, the complainant told him that he possesses Rs. 200/- only . The accused accepted said amount of Rs.200/- and asked the complainant to bring balance amount on next date. However, as the complainant had no desire to give bribe to the accused, he went to the Office of Anti Corruption Bureau, Jalgaon, on same day and lodged complainant against the accused. 4. Thereafter, the necessary formalities and the formality of pre-trap panchanama were completed and the trap was arranged. The raiding party proceeded towards office of the accused and the complainant entered into office of T.I.L.R. and met the accused and handed over papers of his land. It is alleged that the accused enquired the ( 5 ) cria1457.10 complainant whether he had brought the balance amount and the complainant replied in the affirmative. Thereupon, the accused demanded the amount from the complainant. The accused also enquired about the person accompanying with him i.e. the panch. The complainant told him that he was his cousin. Thereafter, the complainant took out currency notes tainted with anthacene powder from the left pocket of his shirt by his right hand and gave them to the accused. It was accepted by the accused by his right hand, counted the same and kept them in the right pocket of his pant. Thereafter, the complainant came out of the office and gave signal and thereafter the members of raiding party rushed to the office of the accused, disclosed their identity and accosted him and made enquiry with him. On search, the accused was found in possession of the tainted currency notes of Rs. 800/-, which were examined under ultraviolet lamp and shining of anthracene power was seen. 5. The defence of the accused is that he is Shirastedar of Taluka Inspector of Land Records, who was empowered under Maharashtra Government Circular dated ( 6 ) cria1457.10 16.08.2002 to accept difference of measurement fee and re- measurement fee. The complainant had applied for ordinary measurement. It is evident from the recitals of his challan. The employees of Taluka Inspector of Land Record office had visited the field of the complainant, but since standing crop was there, they could not carry out measurement. Thereafter, the complainant deposited re-visit fee, but said challan was filled by Taluka Inspector of Land Records Shri Sonawane by himself and not by the accused and whatever told by the complainant to the accused orally on that basis he told him that he had to deposit amount of measurement fee and since that calculation was complicated, the complainant might not have understood it. The accused had told him to deposit Rs. 750/- and also told that if he wanted to get his field measured urgently then he had to deposit urgent fee in addition to the said amount. Accordingly, the complainant gave Rs. 800/- to the accused and accused tried to refund Rs. 50/- and when he demanded change from his colleague Mrs. Momane and he was about to issue receipt of said balance amount to the complainant, but the complainant went outside and thereafter the Officers of Anti Corruption Bureau came ( 7 ) cria1457.10 and caught hold of him. 6. To substantiate the charges levelled against the accused, the prosecution examined four witnesses, namely, P.W.1-Complainant Vikas Choure, P.W.2-Vasant Mule, Dy. Director of Land Record, P.W.3-Madhav Wagalgave and P.W.4- Prakash Sonar, Dy. S.P., A.C.B., Buldhana (I.O.) 7. I have perused the record, record & proceedings and contents of the impugned judgment with the assistance of learned Counsels for the parties. It is apparent from the deposition of the complainant that he has given several admissions in the cross-examination and demolished the very foundation of the prosecution case. It is also stated that according to the complainant, the manner in which the accused was talking, he thought that the accused was demanding bribe of Rs. 1000/- for him and deliberately withheld the work. The complainant also admitted that he did not meet the accused on the day on which he deposited Rs. 750/- by challan and said admission reflects that the accused had no knowledge of he deposited difference amount of measurement fees of Rs. ( 8 ) cria1457.10 750/-. Moreover, the complainant had nowhere stated that on the day of trap he had shown copy of challan to the accused. Considering said admissions, learned Trial Court observed that the officers of Anti Corruption Bureau wanted to trap the accused. Moreover, the complainant further admitted that after he paid Rs. 800/-, the accused took out his money purse and then asked Mrs. Momane whether she had change of Rs.50/- and while the accused was enquiring with Mrs. Momane about the change, the complainant came out of the office and gave signal to the raiding party. Hence, it is apparent that the amount given by the complainant to the accused was towards difference of measurement fees. The accused had filed copy of circular dated 16.08.2002 issued by the Government, since he was empowered to accept difference of measurement fees and re-assessment fees. Moreover, it is further apparent that the accused was giving refund of Rs.50/- to the complainant by demanding change to Mrs. Momane and after deducting the difference of measurement fee of Rs. 750/- he had to refund Rs. 50/- to the complainant, but before obtaining refund of Rs. 50/- and the receipt of payment of the amount from the accused, the complainant went outside and gave signal to the ( 9 ) cria1457.10 raiding party. It is also significant to note that although the complainant has given vital admissions and washed out entire prosecution case, he was not declared hostile by the prosecution and was not cross-examined and therefore the credibility of the testimony of complainant has come under the cloud of suspicion and hence the said testimony of complainant cannot be of any aid and assistance to the case of the prosecution. 8. Moreover, considering the testimony of P.W.3-Madhav and deposition of the complainant, the Trial Court observed that both the witnesses have given different versions and the deposition of P.W.3 panch witness is not consistent with the version of the complainant. It is also observed by the learned Trial Court that the evidence of said panch Madhav and the version of the accused is altogether different from the evidence of the complainant. What is not stated by the complainant, has been stated by said panch witness Madhav. Moreover, evidence of panch witness creates doubt about demand of money towards gratification. Considering the testimony of the complainant as well as said panch witness ( 10 ) cria1457.10 Madhav, it appears that testimonies of both the witnesses differ on material points and hence there is no flaw in the observations made by the learned Trial Court in that respect. 9. Having comprehensive view of the matter, it is apparent that the accused has established on preponderance of probability that the amount was received by him towards payment of difference amount of measurement fees and not as gratification. The eye witness to the incident Mrs. Momane has not been examined by the prosecution for the reasons best known to the prosecution. Moreover, there are discrepancies in the evidence of the complainant and panch witness Madhav. Therefore, the learned Trial Court rightly observed that there is no cogent, convincing, sufficient and reliable evidence on record to hold the accused guilty of any of the offences and acquitted the accused from the charges levelled against him and no interference is required in the appellate jurisdiction. 10. Moreover, view adopted by the Trial Court while acquitting the accused from the charges levelled against him, ( 11 ) cria1457.10 after assessing and scrutinizing the evidence on record, appears to be possible view and same cannot be construed as perverse, and the reasons given therefor cannot be faulted with, and hence, present application deserves to be rejected. 11. In the result, the present application which is sans merits stands dismissed. Leave to appeal is refused. Present application is disposed of accordingly. The record and proceedings be sent back to the concerned Court. [SHRIHARI P. DAVARE, J.] snk/2011/MAR11/cria1457.10