IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3077 OF 2008 The State of Maharashtra .. Applicant Versus Mohammed Yusuf Daruwala & Anr. .. Respondents Mr.J.P.Yagnik, A.P.P for the applicant. Mr.V.V.Purwant for the respondent no.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 12th February 2009. : 12th February 2009. : 12th February 2009. P.C.: . Heard learned A.P.P for the applicant and Shri Purwant for the 2nd respondent. The 1st respondent is already dead. The applicant-State has preferred this application for leave to appeal against the judgment and order dated 16th March 2008 by which the 1st and 2nd accused were acquitted for the offences punishable under section 13(1)(d) read with section 13(2) as well as section 12 of the Prevention of Corruption Act, 1988. The learned A.P.P has taken me through the impugned judgment as well as notes of evidence and other material on record of the case. His submission is that there is a clear evidence of the role played by the 2nd respondent (2nd accused) who accepted the amount offered by way of illegal gratification. He submitted that a clear and unchallenged evidence has been brushed aside (2) by the learned Judge and the impugned order is perverse. 2. I have also heard the submissions of the learned counsel appearing for the 2nd respondent. 3. I have perused the evidence of P.W.2 Raju Agarwal who was running the rationing shop since the year 1999. According to his case, the Zonal Officer of the area in which his shop is located was the 1st respondent (1st accused). One Mr.Gharwadhe, site inspector was working under the 1st accused. According to him he received instructions from the said Mr.Gharwadhe for incurring expenses on Nasik trip of the 1st and 2nd accused. He stated that he accordingly accompanied both the accused to Nasik and had borne the entire expenditure. According to him he received a message from the 1st accused through said Mr.Gharwade that a gift of a gold necklace should be given to the daughter of one Mr.Kamble who was Deputy Commissioner (Supply) at Pune. He stated that on 16th October 1004 he received telephonic message from the 1st accused that if the said gift was not given, the licence of the shop will be cancelled. According to the complainant, on making enquiry with Mr.Kamble he learnt that no such message was given by Mr.Kamble to the 1st accused. Thereafter, he proceeded to file a complaint in the Anti (3) Corruption Bureau. He stated that the accused No.1 instructed him to bring an amount of Rs.14,500/- for purchasing a necklace. He has deposed about the manner in which the trap was laid. He deposed that after the raiding party arrived near the office of the 1st accused he alongwith panch witness and his wife proceeded towards the office of the 1st accused. He stated that the 1st accused enquired with him as to how much amount was brought by him and he replied that he had brought a sum Rs.14,500/-. The witness deposed that the 2nd accused was sitting in a chair outside the cabin of the 1st accused. Thereafter the 1st accused called the 2nd accused and instructed the complainant to pay the amount to the 2nd accused. It is the case of the complainant that the 1st accused instructed the 2nd accused to get the gold ornaments prepared by utilising the amount. The witness thereafter stated that he offered the amount and the 1st accused collected it by his left hand and by transferring the amount to his right hand he handed over the same to the 2nd accused who collected the said amount. 4. This testimony of the complainant has been considered by the learned Special Judge. Going by the version of the complainant, the demand for illegal gratification was made by the 1st accused. The amount (4) was accepted by the 1st accused who in turn paid the amount to the 2nd accused. When the complainant alongwith panch witness and his wife arrived in the office of the 1st accused, the 2nd accused was sitting on a chair outside the cabin of the 1st accused. 5. The learned Judge has referred to the submissions made by the counsel for the 2nd accused that the complainant had not filed any complaint against the 2nd accused and therefore there was no reason for the Anti Corruption Bureau to call a woman panch witness. It seems to be an admitted position that while filing complaint with the Anti Corruption Bureau, the complainant had not disclosed the name of the 2nd accused or has not raised any suspicion against the 2nd accused. The complainant admitted that prior to the incident, the accused no.1 never visited his shop. He admitted that his wife knew the accused no.2. The complainant stated that on 16th October 2001, the accused no.1 gave a ring by his cell phone to the complainant and directed him to meet in his office. Though the complainant disclosed the telephone number of the accused no.1, no material was produced to show that the accused no.1 made the call as alleged. Moreover documents were produced on record to show that the accused no.1 was on election duty from 17th September (5) 2009 to 17th October 2004 and his duty hours were 7.00 a.m. to 10.00 p.m. The learned Judge found number of discripencies in the evidence of the prosecution witnesses. 6. Perusal of the impugned judgment shows that the entire evidence of the prosecution has been scanned by the learned Judge and ultimately he has arrived at a conclusion based on appreciation of evidence. The conclusion drawn by the learned Judge as against the prosecution is certainly a possible conclusion. 7. No case is made out for grant of leave. Application is rejected. (A.S.Oka,J)