(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 601 of 2011 The State of Maharashtra, .. Applicant Through Public Prosecutor, (Original High Court, Bench at Aurangabad. complainant) versus Ramesh s/o. Laxman Vaidya, Age : 51 years, Occupation : Service as Talathi, R/o. MHADA Colony, Mantha Road, Jalna, .. Respondent Taluka and District : Jalna. (Original accused) ....................... Smt. Y.M. Kshirsagar, Advocate, for the applicant. Mr. P.R. Katneshwarkar, Advocate, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 13TH JUNE 2011 (2) COURT'S ORDER : 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 dated 18-10-2010 rendered by the learned Judge, Special Court & A.S.J.-2, Jalna, in Special Case [PCA] No. 12 of 2009, thereby acquitting the respondent (original accused) for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. 3. It is alleged that the respondent (original accused), namely, Ramesh, was serving as Talathi at village Kinhola (Taluka : Badnapur, District : Jalna), at the relevant time. The complainant Madhukar (PW 2) had approached him on 17-6-2009 for issuance of 7/12 extract after making entry of encumbrance of Rs. 10,000/- therein. However, the accused initially demanded Rs. 300/- as bribe therefor which was settled at Rs. 200/- after negotiations for doing the said work. It is also alleged that the complainant was not willing to give amount of bribe to the accused and, therefore, he approached the Police Inspector Dilip Bhagwat (PW 3) and complaint was lodged. Necessary formalities were completed. As per demand made on (3) 17-6-2009, a trap was led on 19-6-2009. Accused allegedly demanded the said amount of Rs. 200/- and the complainant paid the said amount of Rs. 200/- as gratification to the accused which were kept by him in the cupboard. Accordingly, 7/12 extract was issued by the accused to the complainant and thereafter accused was caught hold of. Anthracene Powder was found on his right hand as well as on pocket. After observing necessary formalities, investigation was completed and charge sheet was filed against the accused. The accused faced the trial for the aforesaid charges and was acquitted by the impugned judgment. 4. Being aggrieved and dissatisfied by the said order of acquittal, the applicant / State has preferred the present application seeking leave to file appeal. 5. To substantiate the charges levelled against the accused, the prosecution has examined as many as three witnesses, namely, Pandurang (PW 1), Panch witness; Madhukar (PW 2), the complainant, and Dilip (PW 3), Investigating Officer. The defence of the accused is that the complainant planted the alleged amount of Rs. 200/- of bribe in his cupboard and claimed to be innocent. 6. After perusal of the evidence of Pandurang (PW 1), (4) Panch witness, it appears that the specific demand of bribe by the accused from the complainant is absent in the said testimony and the said witness merely stated about the alleged acceptance of bribe amount by the accused. Moreover, deposition of Madhukar (PW 2), the complainant, reflects that the accused prepared his 7/12 extract in his presence. Then accused demanded money from him. He handed over moey to the accused and took 7/12 extract from him. However, there is no specific contention of the said Panch witness in respect of acceptance of the said amount by the accused. 7. Considering the said evidence, learned trial court has rightly observed in the impugned judgment that Pandurang (PW 1), Panch witness, has failed to adduce the conversation took place between him and the accused at the time of trap as mentioned in the spot panchanama. It is seen from his evidence that the accused demanded money from him, therefore, he handed over money. Learned trial court has further observed that there is no whisper about the specific sum demanded by the accused from him and in pursuance of demand, he handed over specific sum to the accused. Moreover, learned trial court has further observed that it can be seen that at the time of trap, before handing over 7/12 extract, the accused did not make demand of Rs. 200/- from the complainant. It can be seen from his evidence (5) that after preparing the 7/12 extract, the complainant handed over Rs. 200/- to the accused. Learned trial court has further observed that it can be seen that at the time of trap, there was no demand of bribe by the accused to the complainant. Furthermore, the spot panchanama (Exhibit 19) shows that certain conversation took place between the complainant and accused at the relevant time. However, there is no whisper in his evidence regarding conversation took place between the accused and the complainant. Apparently there is no flaw in the said observations made by the learned trial court. 8. Moreover, as regards evidence of Madhukar (PW 2), learned trial court has observed that the complainant admitted in the cross examination that he was sitting near the cupboard which was doorless. He has further admitted that as soon as P.I. Bhagwat came there, he asked the accused to take out money from cupboard. Accordingly, accused handed over money from cupboard to P.I. Bhagwat. It is further observed by the learned trial court that it is significant to note that the complainant does not say that after arrival of P.I. Bhagwat, he made inquiry with Panch No.1 that who demanded bribe and who accepted bribe. On the contrary, evidence of complainant itself shows that as soon as P.I. Bhagwat came there, he directly asked the accused to take money from the cupboard and the accused took out money (6) from cupboard. Learned trial court has further observed that in such situation, finding of anthracene powder on the hands of accused cannot be ruled out, and the said observation of learned trial court cannot be faulted with. 9. It is further observed in the impugned judgment that on inquiry with Panch No.1 told that the accused demanded amount of Rs. 200/- as a bribe from the complainant and accepted the same from the complainant for taking entry of encumbrance of Rs. 10,000/- in the 7/12 extract of his father. Panch No.1 also stated that accused kept amount of bribe in the wooden cupboard. They caught hold of the accused, who was asked where he kept the amount of bribe, so he told them that the amount is kept in the wooden cupboard. At his instance, Panch No.2 Dhilpe took out amount from the cupboard. Pertinently, the prosecution has not examined said Panch Dhilpe and no convincing reason is given therefor. In fact, the prosecution could have thrown light on the aspect, who exactly took out the amount from the cupboard, whether said Panch witness Dhilpe or the accused, and the said anomaly remained unexplained. 10. In the circumstances, after scrutinizing and assessing the evidence on record, the view adopted by the learned trial court while acquitting the accused is a possible view and the (7) same does not appear to be perverse and, therefore, no interference in appellate jurisdiction is warranted. Hence, present application deserves to be rejected. 11. In the result, present application which is sans merits, stands dismissed and leave to file appeal is refused. 12. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka601