1 cri appln 2485.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2485 OF 2010 State of Maharashtra .. Applicant Versus Hanumant Rajeshwar Kulkarni .. Respondent Smt. Y. M. Kshirsagar, A.P.P. for the Applicant/State. Shri Joydeep Chatarjee, Advocate for the Respondent. CORAM : S. S. SHINDE, J. DATE ON WHICH RESERVED FOR ORDER 02.02.2011 DATE ON WHICH ORDER PRONOUNCED 08.02.2011 PER COURT : . This application is filed by the applicant/state seeking leave to appeal against the judgment and order dated 31.03.2010 passed by the Judge, Special Court, Jalna in Special Case (PCA) No. 06/2009 thereby acquitting the respondent for the offences punishable U/Sec. 7 and 13(1)(d) r/w Sec. 13(2) of the P. C. Act. 02. The brief facts of the prosecution case are as under : The complainant Ashok Pandharinath Ambhore is serving 2 cri appln 2485.10 as Police Constable, B. No. 138 at Police Headquarder, Jalna. He is serving as Police Constable at Police Headquarter, Jalna, since last two years. He is the President of District Police Employees Co-operative Society Ltd., Jalna from 05.02.2004. One Shri Dnyandeo Nana Shelke, Police Constable B. No. 992, working at Police Headquarter, Jalna, is the Secretary of the said society. Before two years, they were transferred at Police Head quarter Jalna, since both of them are required to look after the affairs of the co-operative Society, therefore, they have requested the accused, who was working as a Reserved Police Sub Inspector, Head quarter Jalna, for allotment of duties as per their convenience. In order to allot duties as per their convenience, the accused was demanding Rs. 1,000/- per month. Initially, they have shown their inability to give amount. However, the accused used to allot them duties out of head quarter and also insulting them. As such, the accused was harassing them. Therefore, they were constrained to give Rs. 800/- to Rs. 1,000/- per month since last 1 and 1/2 years to the accused. Therefore, the accused used to allot them duties as per their convenience and also granting leave. In the current month, for want of money, they could not give money to the accused. Therefore, the accused allotted duties to them on 15.02.2007 in the office of Superintendent of Police, 3 cri appln 2485.10 Jalna, as a guard. They attended their duties in the office of Superintendent of Police, Jalna. Thereafter, on the same day, at about 4 p.m. he had been to the Government residence of the accused and met him. He asked the accused as to why he has changed his duty, so the accused said him that 10th of this month had already gone and now this is 15th day of the month and in spite of that he has not given amount. Therefore, he has changed his duty. Therefore, he has given Rs. 500/- to him. The accused said him that, now he is required to give Rs. 1,500/- per month. The accused further said him that, after payment of Rs. 1,000/-, he will change his duties and asked him to give Rs. 1,000/- up to Saturday either in his office or at his house. Therefore, he was constrained to give Rs. 1,000/- to the accused. However, he was not willing to give the said amount to the accused. Therefore, he approached the office of Anti Corruption Bureau, Jalna on 17.02.2007. He has lodged his oral report to the office of Anti Corruption Bureau, Jalna. P.W. 3 Shaikh Hakkani Mohd. Hussain, who was working as Dy. S. P. in the office of Anti Corruption Bureau, Jalna, called two panchas from the office of Controller, MSRTC, Jalna. He introduced panchas to the complainant and vice versa. The complainant has handed over Rs. 1,000/-, having one currency note of Rs. 500/- denomination 4 cri appln 2485.10 and five currency notes of Rs. 100/- denomination. The anthracene powder was applied to the said currency notes. He has made demonstration so as to ascertain that if any article is smeared with anthracene powder and if the said article is examined under the light of ultra violet lamp, then bluish shining will be noticed on the said article. Then he applied the anthracene powder to the currency notes and these currency notes were examined under the light of ultra violet lamp, so bluish shining was noticed on the said notes. Accordingly, pre trap panchanama was prepared by him in presence of panchas. Thereafter, the complainant contacted the accused from the phone number of office of Anti Corruption Bureau, Jalna to the phone number 225587 of Police Headquarter, Jalna and the complainant asked the accused as to where he should give money to him. So, the accused asked him to come at his house after sometime and he will change his duties. Then, he himself, the complainant, panchas and police staff left the office of Anti Corruption Bureau, Jalna, and reached in the vicinity of the Government quarter of the accused. Then he sent the said complainant and panch No. 1 to the house of the accused and they were ambushing in the vicinity of the quarter of the accused. Accordingly, at about 13.35 the complainant had been 5 cri appln 2485.10 to the house of the accused along with panch No. 1. The complainant asked the accused to change his duties so the accused said him that he will grant casual leave. He asked the accused when there is weekly off of Shelke, so he told him that weekly off of Shelke is on Monday. Then the accused said him that he will change their duties in the evening time. Then the complainant said him that he had already given Rs. 500/- on that day, then the accused asked him to give remaining amount of Rs. 1,000/-. Therefore, he took out bundle of Rs. 1,000/- from left pocket of his shirt and handed over to the accused. The accused accepted the same by his right hand and he has kept the same in back pocket of his trouser which was hanging to the peg in his house. At about 15.45 hours the complainant came out of the quarter of the accused and made signal to Dy. S. P. Shaikh along with police staff and panch No. 2 promptly rushed to the quarter of the accused. He asked panch No. 1 who has demanded bribe and who has accepted the bribe. Therefore, panch No. 1 on pointing towards the accused said that he had accepted bribe of Rs. 1,000/- from the complainant. He further disclosed to him that the accused has kept the amount of bribe in the pocket of his trouser. Then Dy. S. P. Shaikh caught hold the hands of the accused. He introduced himself and members of raiding party to 6 cri appln 2485.10 the accused. He asked the complainant to go out of th quarter of accused without touching to any of the articles. Then shirt of the complainant was also examined under the light of ultra violet lamp. Therefore, anthracene powder was noticed inside the pocket of his shirt. He narrated all events to Dy. S. P. Shaikh. Dy. S. P. Shaikh examined both the hands of accused under ultra violet lamp, so anthracene powder was noticed on the tips of fingers of his right hand. He inquired with panch No. 1 where the accused kept the bribe amount, so he told him that accused kept amount of bribe in the pocket of his trouser hanging on the peg. He asked panch No. 2 to take out amount of bribe from the pocket of trouser of accused. Accordingly, he took out the bundle of the notes from the back pocket of trouser of the accused. He examined these currency notes under the ultra violet lamp, so anthracene powder was noticed on these currency notes. He confirmed the description and numbers of said currency notes with that of pre trap panchanama and found correct. He kept these currency notes in the envelope and seized the same. Pocket of the trouser of the accused was examined under ultra violet lamp, so anthracene powder was noticed in the said pocket. Then he called the complainant inside the house of the accused and examined his hands under ultra violet lamp so anthracene 7 cri appln 2485.10 powder was noticed on the tips of the fingers of right hand of the complainant. Then he prepared detailed spot panchanama. Then he lodged complaint on behalf of Stte with police station Taluka Jalna vide Exhibit 15. On the basis of same, Crime No. 3005/2007, unde Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act was registered with Taluka Police Station Jalna and investigation was handed over to Dy. S. P. Shaikh. He recorded supplementary statement of the complainant and statements of the witnesses as per their say. Due to his transfer, remaining investigation of this crime was handed over to P. I. Yerule and after completion of investigation, Dy. S. P. Pagare filed charge sheet in Special Court, Jalna. 03. Charge was framed against the accused. The contents of the charge were read over and explained to the accused in vernacular to which he pleaded not guilty and claimed to be tried. His defence is that of total denial. It is his further defence that he accepted the amount of Rs. 1,000/- which was borrowed by the complainant from his wife as a hand loan. The accused came to be examined under Section 313 of Cr. P. C. in which he has taken the same defence. 8 cri appln 2485.10 04. At the trial, the prosecution has examined in all three witnesses to bring home the guilt of the accused person. Besides oral evidence, the prosecution has relied upon certain documentary evidence. The prosecution has closed its evidence vide pursis at Exhibit 18. In defence no witness has been examined by the accused. 05. The learned Additional Public Prosecutor relying on the evidence would submit that, the prosecution has proved demand, acceptance and recovery. The Trial Court has not properly appreciated the evidence brought on record by the prosecution and failed to take into consideration the submissions of the prosecution that accused was demanding Rs. 800/- to Rs. 1,000/- for allotment of duty to the complainant. The Additional Public Prosecutor invited my attention to the submissions of the witnesses including complainant and other evidence brought on record and submitted that, this application seeking leave to appeal may be allowed. 06. On the other hand, learned counsel appearing for the respondent submitted that, the prosecution has failed to prove the demand and also acceptance. Therefore, this Court may not 9 cri appln 2485.10 interfere in the judgment and order of acquittal. 07. Upon hearing learned A. P. P. for the applicant/State and learned counsel for the respondent and upon perusal of the impugned judgment and also the original record and proceedings, I am of the opinion that, the view taken by the Special Court is possible view and no interference is warranted for the reasons stated hereinbelow. 08. It is the case of the prosecution that, the accused demanded Rs. 800/- to Rs. 1,000/- per month from the complainant and one Mr. Shelke for allotting duties as per their convenience. However, so far as demand of Rs. 800/- is concerned, the said fact has not been stated in the complaint at Exhibit 10. The complainant has stated before the Court that after duty hours on 15.02.2007, he had been to the house of the accused. However, said fact is not stated in the complaint. So far, case of prosecution of demand is concerned Mr. Shelke was not examined by the prosecution though it is stated by the complainant to alter the duties, the accused demanded Rs. 800/- to Rs. 1,000/- per month from him and one Mr. Shelke. So far actual incident is concerned, it appears that, the complainant 10 cri appln 2485.10 himself stated to the police that, he has already given Rs. 500/- to him and today i. e. on the date of incident he has brought remaining amount of Rs. 1,000/- and accordingly, complainant took out amount of Rs. 1,000/- and handed over to the accused. The main evidence on the point of demand is silent. The prosecution has failed to bring on record convincing evidence on the point of demand. Therefore, the Special Court taking into consideration the judgment of the Hon'ble Supreme Court in the case of S. P. Paulraj Vs. State reported in 2009 (3) B. Cr. C. 231 has concluded that the evidence brought on record by the prosecution of demand is silent and, therefore,acquitted the respondent/accused. 09. On independent scrutiny of the evidence, it appears that one Malhar was hajeri major. Said fact has been admitted by the complainant and said Malhar was assigned with the work of allotment of duties. Therefore, in my opinion the Judge, Special Court, Jalna has taken a possible view. The application is devoid of any merit, hence stands rejected. [ S. S. SHINDE, J.] bsb/Feb. 11