1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 325 of 2009 The State of Maharashtra v. Shankarraoand anr -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr K.S. Dhote, APP for State Mr S.N. Mardikar, Adv for respdts Coram : A.P. Bhangale, J Dated : 29th January 2010 1. Heard learned counsel for the parties. Applicant- State is seeking leave to file appeal against judgment of acquittal dated 1st April 2009 rendered by the Special Court (ACB), Nagpur in Special Case No. 15 of 2004 whereby respondents- accused have been acquitted of the offences punishable under Sections 7, 12 and 13 (d) read with Section 13 (2) of the Prevention of Corruption Act. 2. Record and Proceedings have been received. I have perused impugned judgment of acquittal as also R & P. I have heard learned APP for applicant-State and learned counsel for respondents at length. 3. It is found from record that accused no.2 was not on 2 duty on 20.1.2004 on which date he is alleged to have asked complainant to deliver him amount of bribe on behalf of accused no. 1. Accused no.1 was admittedly not present at Police Out- post on 21.1.2004 when the trap was laid. Complainant Rajkishorsingh (PW 1) has deposed that on hearing from accused no.2 that accused no.1 was out of station, he gave amount to accused no.2 who counted it; went to toilet and on coming out asked the complainant to get back after assuring complainant that he would ask “major” (accused no.1) to drop case against complainant. It is thereafter that he gave signal to raiding party. According to P.W. 1/complainant, trapping party caught accused no. 2 and cash amount was seized from accused no.2. Complainant has specifically deposed that P.W. 2 Rambhau (pancha witness) was with him throughout. This pancha witness Rambhau has a different story to tell. He claims that after receiving currency notes, accused no. 2 was puzzled; he started sweating and therefore went to toilet and closing the toilet door, he threw cash amount out of window. According to him, when the raiding party rushed, cash amount was not with accused no.2 and on search the amount was found behind the toilet. Moreover, each of these two witnesses claims that he followed accused no. 2 when he was proceeding towards toilet. Apart from this, the allegation that on earlier day accused no.1 threatened complainant of booking him to crime if he did not pay Rs. 5000/- (which is said to have been brought down to Rs. 2000/-), is also not established on record. 3 4. The finding rendered by the Special Court that amount appears to have been given to accused no.2 per force is appropriate and plausible. Demand of money as a bribe by accused no.1 from complainant and abetment thereof by accused no.2 in the form of acceptance of amount of bribe on behalf of accused no.1 is not at all established on record. Mere acceptance without knowledge of pre-trap demand of bribe by itself cannot be said to be an intentional assistance offered by accused no. 2 to accused no. 1 for commission of offence. To attract Section 12 of the Act, it must be established that accused no. 2 intentionally assisted accused to commit offence. 5. Learned Assistant Government Pleader contended that whether cash amount was searched out from the back-side of toilet or it was directly seized from accused no.2, is not relevant and the Court has to merely see whether the amount had passed on to accused from complainant by way of bribe and in this case, according to learned APP demand and acceptance is duly proved from the evidence of P.W. 1 and P.W. 2 as also other evidence led on record. On going through the impugned judgment of acquittal this Court comes to a conclusion that findings given by the Special Court are not perverse and/or based on erroneous appreciation of evidence on record. This Court does not find that the Special Court misread any part of the evidence so as to deviate from the findings rendered by the Special Court. The power of interfering with the order of 4 acquittal is equal to that of interfering with the order of conviction and it can be done for substantial, cogent and compelling reasons only. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. 6. Viewed from any angle, therefore, there appears no merit in the appeal. Leave to appeal is, therefore, refused and consequently, instant appeal against acquittal is dismissed. Judge. Hsj