1 crap1492.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1492 OF 2010 The State of Maharashtra ...Applicant VERSUS Chandrakant Bhalchandra Kulkanri ...Respondent ..... Shri V.G.Shelke, A.P.P. for applicant Shri G.K.Naik Thigale, advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 25 th April, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant/State seeking leave to file Criminal Appeal challenging the judgment and order, dated 5.12.2009, rendered by the learned Special Judge, Ambajogai, in Special Case No. 4 of 2004, thereby acquitting the respondent (original accused) for the offences punishable under 2 crap1492.10 Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. 3 Briefly stated, the facts of the case are that the respondent herein i.e. original accused was serving as Senior Clerk in the office of Sub-Divisional Engineer, (Telehpone), Parli, District Beed and the complainant, namely Sudhakar Bhanudas Gite, r/o Tokwadi, Taluka Parali, who runs the electric shop, intended to start S.T.D. booth in his said shop and for that purpose, he filed an application along with necessary documents in the office of B.S.N.L., Parli. It is alleged that on 25.7.2003 between 2.30 p.m. to 3.00 p.m., he met Shri Kulkarni i.e. accused herein and informed him that he wanted to start S.T.D. Booth and after verifying the documents, the accused told the complainant that for finalising the proposal the complainant, he would have to pay Rs.3,500/-. It is further alleged that after negotiations, the accused agreed to forward the file to start new S.T.D. Booth for Rs.1,000/-. According to the complainant, the accused told him to pay said bribe amount of Rs. 1,000/- after coming to B.S.N.L. Office after 3.00 p.m. on 28.7.2003, and thereafter he would forward the file and would see that sanction is accorded to start S.T.D. Booth. 4 Thereafter, the complainant lodged complaint with Anti Corruption Office, Beed on 28.7.2003 and necessary formalities were 3 crap1492.10 observed and alleged trap was laid on 28.7.2003 at the office of the accused in presence of the panch and the accused accepted the bribe amount of Rs.1,000/- which was kept in his drawer and he was caught hold of and it is also alleged that further necessary formalities were observed and the investigation was carried out and sanction was accorded from the competent authority and after completion of investigation, charge sheet was filed against the accused in the Special Court. The charge against the accused was framed at Exh.11 and he pleaded not guilty and claimed to be tried. 5 To substantiate the case of the complainant, the prosecution examined four witnesses, namely (1) PW1 complainant Sudhakar Bhanudas Gite; (2) PW2 Vinayak Anerao – panch witness; (3) PW3 Anthony Karlos Ekka – sanctioning authority; and (4) Vijaykumar Pathare, P.I., A.C.B. - investigating officer. 6 According to the prosecution, there was previous agreement between the complainant and the accused and there was prior demand made by the accused on 25.7.2003. However, in the evidence of the complainant he has not given date on which he met the accused in the office and whether the accused demanded bribe of Rs.1,000/- and in cross-examination, he categorically admitted that on 24.7.2003 and 25.7.2003, he could not meet the accused, as 4 crap1492.10 well as he further admitted that prior to 15 to 20 days of incident, he lastly inquired with the accused, and hence, it is clear from the said admissions that on 25.7.2003, the complainant did not meet the accused, and therefore, the theory put forth by the complainant that on 25.7.2003 he met the accused in the office of B.S.N.L., Parli, where the accused demanded Rs.3,500/- as a bribe initially and afterwards the figure was arrived at Rs.1,000/-, becomes suspicious, and accordingly, the prosecution has failed to prove that there was previous agreement between the accused and the complainant on 25.7.2003; wherein the complainant agreed to pay Rs.1,000/- as bribe amount for the purpose of getting sanctioned the S.T.D. Booth and the observations made by the Trial Court in that respect cannot be faulted with. 7 Moreover, there are discrepancies in the evidence of PW1 Sudhakar Bhanudas Gite and the panch witness PW2 Vinayak Anerao in respect of acceptance of bribe amount by the accused from the complainant on the date of trap i.e. 28.7.2003, since the evidence of the complainant Sudhakar Gite does not reveal that there was demand of bribe amount by the accused at the time of trap on 28.7.2003; whereas PW2 panch witness Vinayak Anerao stated in his deposition that there was demand as well as acceptance of the bribe at the time of trap i.e. 28.7.2003. 5 crap1492.10 8 Moreover, as per the evidence of PW2 Vinayak Anerao, he along with the complainant Sudhakar Gite went to the telephone office and stood near table of accused and Gite inquired with accused about his work and accused asked whether amount is brought and Gite replied in affirmative and thereafter Gite gave amount which was kept in his left pocket of shirt. He further deposed that accused took those notes by his right hand, counted by his both hands and kept in drawer of his table, and accordingly, evidences of complainant PW1 Sudhakar Gite and panch PW2 Vinayak Anerao are contrary to each other regarding the material aspect and there is no flaw in the observations made by the Trial Court in that respect. Considering the evidences of complainant PW1 Sudhakar Gite, panch PW2 Vinayak Anerao and PW4 Vinaykumar Pathare, learned Trial Judge also observed that there are material contradictions in the said evidences and it would be unsafe to rely on the said testimonies and considering the evidence of said witnesses, the said finding does not appear to be out of place. 9 Besides that, apparently there is delay of nine months in according sanction and the Trial Court observed that the said delay is not properly explained by the sanctioning authority i.e. PW3 Anthony Karlos Ekka and same also cannot be overlooked. 6 crap1492.10 10 In the circumstances, having the comprehensive view of the matter, it is apparent that the view adopted by the Trial Court while acquitting the accused, after scrutinizing and assessing the evidence on record, is a possible view, and same does not appear to be perverse, and hence, present application deserves to be rejected. 11 In the result, present application stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1492.10