1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 457 OF 1999 The State of Maharashtra, through Public Prosecutor, High Court Bench, Aurangabad. ..APPELLANT -VERSUS- 1. Bhagwan S/o Tulshiram Shelke, Age : 40 years, Occ : Asstt. Registrar, Co-operative Societies, Jalna. 2. Raja S/o Kishanrao Khardekar, Age : 44 years, Occ : Head Clerk, Asstt. Registrar, Co-operative Society, Jalna, Dist. Jalna. ..RESPONDENTS Mr. S.G. Nandedkar, A.P.P. for applicant. Mr. Jeodeep Chatterji, advocate for respondents. CORAM : A.V. NIRGUDE, J. Date : 18th October, 2010 ORAL JUDGMENT : 1. This appeal is filed by the State of Maharashtra against the judgment and order dated 07.09.1999 passed by the learned Special Judge, Jalna in Special Case No. 4 of 1994, in which the respondents were accused. The prosecution case, in short, can be narrated as under. The respondents No.1 and 2 are the Assistant Registrar, Co-operative Societies and the Head Clerk working under him, respectively. The complainant was a Union Leader, 2 who wished to register a Co-operative Housing Mortgage Society for his colleague. As precondition for registration of such society, the complainant approached the respondents-accused to seek the respondent no.1's permission for opening a bank account in the name of the proposed society. On 3rd July, 1992, the respondent no.1-accused demanded Rs. 500/- as bribe for giving permission to open the account. The complainant lodged a complaint to Anti Corruption Bureau narrating these facts. On 4th July, 1992, a trap was laid and in presence of a shadow panch, the complainant met the respondent no.1-accused, who asked him as to whether he had brought the amount and thereafter he asked the complainant to deposit amount with the respondent no.2. Accordingly, the respondent no.2 received the amount and the trap succeeded. 2. The respondents took up a very plausible defence. They pointed out and established on record through the admissions of complainant that on the previous day, the complainant had even signed certain challans, which were required for registration of the proposed society. One of the challans required the complainant to deposit Rs. 500/- as registration fees of the society. The complainant admitted that the amount was not paid on that day. He further admitted that the amount was due from him on the next day i.e. on the day of trap. The respondents stated in their defence that when the complainant approached them on that day, they demanded registration fees and the same was paid and received. 3. The learned Judge of the Lower Court accepted this defence. The learned Judge of the Trial Court also held that sanction for prosecuting the respondents was also not lawful. 3 4. Shri. S.G. Nandedkar, the learned A.P.P. appearing for the appellant contended that both these findings recorded by the Courts below were erroneous and perverse. 5. The first question that would arise for my consideration is whether the sanction granted by the prosecution witness no.6 for prosecuting the respondents was lawful. In my view, the answer is in affirmative. The prosecution witness no.6 was the Desk Officer of Co-operative Department. He said, he received the papers from the A.C.B. He said, on scrutiny of the papers, he came to the conclusion that the case was fit for grant of sanction. Accordingly the sanction was granted. This witness in cross examination admitted that he had sent the papers also to the Department of Law and Judiciary for obtaining their opinion. But he admitted further that he did not remember as to whether the opinion is received and he took that opinion into consideration. He further admitted that he would not be able to distinguish between Section 197 and Section 19 of the Prevention of Corruption Act, 1985. He further added in the cross examination that the draft sanction order was also sent to him. The learned Judge of the trial Court on the basis of these admissions readily came to the conclusion that this witness did not apply his mind before grant of sanction. I afraid, the conclusion is erroneous. There is practically no evidence on record to show that this witness did not apply his mind to the facts of the case. As mentioned above, this witness categorically stated that he has gone through the papers of the case and had formed a opinion. As a matter of practice, a draft of sanction order was forwarded along with the papers and if such draft is used ultimately for preparing the final sanction order, it can not be said that the witness failed to apply his mind to the facts of the case. Only because this witness could not point out difference 4 between Section 197 of Criminal Procedure Code and Section 19 of the Prevention of Corruption Act, it would not disqualify him to accord sanction for prosecuting the respondents. I think the finding on this point recorded by the learned Judge of the trial Court is erroneous. 6. The second point is whether, the prosecution has proved its case beyond reasonable doubt and whether the defence raised by the respondents would prove their innocence on probability. Unfortunate for the prosecution, the shadow panch Shri. Kakade died before the commencement of the trial. So the prosecution did not have assistance of corroborative evidence of shadow panch. It placed reliance only on the deposition of the complainant and the deposition of the second panch, who narrated as to what the shadow panch stated to him immediately after conclusion of the trap. On one hand, the complainant categorically stated that on the previous day, the respondent no.1 asked the bribe of Rs. 500/- from him for giving permission for opening the account of the proposed society. There is no corroboration for this evidence coming from an independent witness. After the trap was arranged, the complainant said that he and the shadow panch went inside the office of the respondent no.1. He narrated the incident in his deposition as under:- “After going there we sat and enquired with the accused no.1 as to what happened about the permission to open the account in the bank. On enquiry accused no.1 ranged the bell to call the peon. He also asked the peon to call accused no. 2 Mr. Khardekar along with file who came in answer to bell. Thereafter, accused no.2 Mr. Khardekar came in the cabin of accused no.2 along with file. At that time, accused no.1 Mr. Shelke asked me whether I did bring the amount of Rs. 500/-. I replied in the affirmative. Accused no.1 Mr. Shelke then asked me to handover that 5 amount to accused no.2 Mr. Khardekar. Therefore(sic), then in the cabin of accused no.1 I gave amount of Rs. 500/- to accused no.2 after taking out from my pocket. After giving that amount to Mr. Khardekar Mr. Shelke asked him (kHardekar) to give him the amount received and the amount of Yesterday afterwards. After receiving amount from him Mr. Khardekar kept it in the pocket of his pant. Thereafter I came out of the office and signaled as directed." From plain reading of this part of the deposition, one would wonder whether the respondent no.1 was demanding bribe or the amount which was officially required to be deposited. One would also wonder whether the respondent no.2 was accepting the bribe amount for and on behalf of the respondent no.1 knowingly that it was a bribe offered and given to the respondent no.1. The deposition of the prosecution witness no.2, who was second panch is also on similar lines. Assuming that the deposition of second panch is admissible in view of Section 6 of the Evidence Act, still I am doubtful whether the prosecution would be able to prove that amount which was demanded by the respondent no.1 was the bribe. There is practically nothing incriminating in the depositions of these two witnesses. 7. In this background as said above, the defence could bring on record from the complainant that he had signed certain challans on the previous day for registration of the society. He further admitted that the challan required him to deposit amount of Rs. 500/- with the respondent no.1 and the respondent no.1 is authorised to receive such amount. The challan was already prepared. The challan was virtually a receipt of Rs. 500/-, which would be deposited in future. If the respondents is able to show that he had reason to receive Rs. 500/- from the complainant 6 towards the challan amount then on probabilities the defence of the respondents is amply proved. I find nothing incorrect about the findings of the learned Judge of the trial Court to give benefit of doubt to the respondents. The appeal should therefore, fail and stands dismissed. (A.V. NIRGUDE) JUDGE gas/cria457.99/ok