1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5043/2010 The State of Maharashtra Applicant. V E R S U S Sanjay Navnath Suryawanshi and another. Respondents Shri B.V.Wagh, APP for applicant. Mr.S.J.Salgare h/f Smt. S.S.Jadhav,Advocate for the respondent No.1. Shri P.M.Gaikwad, advocate for respondent No.2. CORAM : SHRIHARI P. DAVARE, J. DATE : 8 th JUNE, 2011. PER COURT : 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 9.8.2010, rendered by Special Judge, Osmanabad in Special Case (AC) No.16/2009, thereby acquitting the respondents/original accused nos. 1 and 2 for the offences punishable under sections 7,12,13(1) (d) r/w 13 (2) of the Prevention of Corruption Act. 2 3. I have perused the impugned judgment dated 9.8.2010 and record and proceeding with the assistance of learned counsel for the parties. 4. Accused No.1 was serving as Junior Clerk in PWD, Osmanabad and accused No.2 was serving as Civil Engineer Assistant in Special Project Division at Osmanabad at the relevant time. It is alleged that one Suman Arun Tekale of village Shingoli was to get N.A. Certificate of her land admeasuring 4-H 5-R out of gat No.82 in the year 2008 and complainant Bhagwat Nivartti Padwal being her brother acted on her behalf to procure said N.A. Certificate. Hence, he approached the office of Executive Engineer PWD Osmanabad on 25.11.2008 and accused No.1 asked him to bring an application in writing addressing to the Executive Engineer Special Project Division, Osmanabad and Rs.2000/- towards expenses. It is alleged that on negotiations said amount of Rs.2000/- was settled at Rs.1500/- to be paid by the complainant. It is also alleged that accused No.2, who was serving as Civil Engineer Assistant in Special Project Division, Osmanabad also comes into 3 picture and part of the amount was required to be paid by him for getting the work of N.A. Certificate to be done. It is further alleged that, since complainant was unwilling to pay the said amount, he lodged complaint and thereafter on completion of necessary formalities trap was laid and conducted on 27.11.2008 and on demand of accused No.1, complainant paid amount of Rs.1500/- to him which was accepted by accused No.1. It is further alleged that, out of said amount of Rs.15,00/- accused No.1 paid an amount of Rs. 300/- to accused No.2. Accordingly, it is further alleged that accused No.1 accepted bribe amount of Rs.1200/- and accused No. 2 accepted bribe amount of RS.300/-. Both the accused were caught raid handed during the trap and anthracene powder was found on their hands as well as right side pant pocket of the accused No.1. Investigation was carried out and charge sheet was filed against them. Accused Nos. 1 and 2 faced trial under the aforesaid charges. 5. To substantiate the charges levelled against them, prosecution has examined in as many as five witnesses as below : i] PW1 Subhash Kashirai Navtake – Sanctioning authority in respect of accused No.1. 4 Ii] PW 2 Hemant Sampatrao Pagare – Sanctioning authority in respect of accused No.2. Iii] PW 3 Dnyaneshwar Raosaheb Wadkar – panch witness. iv] PW 4 Bhagwat Nivartti Padwal v] PW 5 PHC Subhash Balasaheb Bagdi Investigating Officer since DYSP Mohd Yunus Shaikh expired on 20.8.2009. 6. As regards sanction order in respect of accused No.1- PW1 Subhash Navtakke, Superintending Engineer PWD circle Osmanabad proved sanctioned order Exh.19. However, PW 1 admitted in his cross examination that accused No.1 was working in audit and registration branch of PWD Lohara on the date of incident and there was no application of Suman Arun Tekale received in the office of PWD Osmanabad for ‘No objection certificate’ regarding the land at Shingoli on 26.11.2008. So also there was no application submitted by Bhagwat Padwal for ‘No objection Certificate’ in the office of Executive Engineer. He also submitted that work of Suman Tekale was not concerned to his office as well as accused No.1 was not concerned with the said work. According to him, work of issuance of certificate for grant of NA permission regarding village 5 Shingoli was not within the jurisdiction of his office or Sub Division Osmanabad. He further admitted that there was no record of bad conduct of accused No.1 in his earlier service, as well as he did not find any complaint against accused No.1 that he was demanding bribe. Moreover, it is also found that on application signed by Suman Tekale dated 26.11.2008 which is addressed to the Executive Engineer, Special Project Division, Osmanabad, there is no endorsement of presentation on that application of any date before the officer. Moreover, it is found that on application dated 27.11.2008 the address was scored out and changed it to the Dy. Engineer Special Project Sub-Division, Tuljapur. PW 1 admitted that he did not make any inquiry about said change nor called accused No.1 for making inquiry Hence, learned trial court has observed that sanction was accorded to prosecute accused No.1 without there being any primafacie case against him. Therefore, it cannot be said that sanction which was accorded merely on the basis of spot panchnama is good or valid and said finding of the learned trial court cannot be faulted with. 6 7. As regards sanction in respect of accused No.2, prosecution has examined PW 2 Hemant Pagare Superintendent Engineer, Special Project Division, Aurangabad and considering his evidence learned trial court observed that he did not apply his mind to the actual work of complainant and nature of work whether it was entrusted to accused No.2, at the relevant time. It is also observed by learned trial court that he did not make any inquiry as to whether there was any application as such was made from the office of Tahsildar or Collector, Osmanabad so also he did not find any application of complainant presented to his office on 26.11.2008 or 27.11.2008. Said witness also admitted that he did not make any inquiry as to whether who has scratched and changed the address on that application as to the ‘Sub-Divisional Engineer’, Tuljapur by cancelling the words to the ‘Executive Engineer,’ Osmanabad. He has further admitted that no reasons of his satisfaction are mentioned in the sanction order and there was no letter received by him from the office of S.P. (ACB) Aurangabad requesting him to accord sanction. He also did not make inquiry with the accused No. 7 2. Hence, in view of the said position learned trial court came to the conclusion that for the reasons stated herein above, sanction accorded by PW 2 is also not free from defect and apparently there is no flaw in the conclusion drawn by the learned trial court in respect of sanction pertaining to accused No.2. Accordingly, it is apparent that sanction accorded for the prosecution in respect of both the accused appear to be defective and reasoning given therefor by the learned trial court cannot be faulted with. 8. It is apparent from the evidence of the complainant PW 4 Bhagwat Padwal and PW 3 Dnyaneshwar Wadkar panch witness that there is no cogent and convincing evidence against accused no.2, in respect of demand and acceptance of the alleged bribe amount. 9. As regards the alleged demand and acceptance of the bribe amount by accused No.1, apparently there is variance in the testimonies of PW 4 Bhagwat and PW 3 Dnyaneshwar panch witness, since PW 3 panch witness Dnyaneshwar categorically admitted in his cross examination that it is true that neither on 26.11.2008 nor on 8 27.11.2008 accused No.1 demanded bribe amount from the complainant. He also admitted that accused No.1 told to complainant that work concerned him was not within the power of his office and it is within the limits of office of Tuljapur. He has further stated that complainant was also aware of this fact that work is not concerning to the office of accused. Hence, said very admission of PW 3 panch Dnyaneshwar brings the case of prosecution against accused No.1, in doldrums in respect of alleged demand and acceptance of bribe amount. 10. Besides, it appears that complainant Bhagwat is habitual complainant during the tenure of DYSP Mr. Shaikh as rightly observed by learned trial court since PW 4 admitted in his cross examination in paragraph No.6 that he is the only person who bears name Bhagwat @ Babasaheb in Shingoli and he has filed one anti corruption case against one Dattatraya Baburao Pawar, Talathi and his Clerk Ramchandra Nirantar. He also admitted that he also filed anti corruption case against Medical officer, PHC Yedshi. The name of the said accused is Dr. Anil Dadarao Waghmare. He further 9 admitted that he filed anti corruption case against Gramsevak Mallikarjun Lohar, Jagdish Shinde, Sundar Magar Member of Grmapanchayat. He also admitted that he filed Anti corruption case against present Sarpanch of village Shingoli named Tukaram Pawar. He further admitted that in all there were five anti corruption cases during the period of Mohd. Yusus Shaikh Dy.S.P. ACB office, Aurangabad. He further admitted that there was no case made by him against any person before posting Dy.S.P. Yunus Shaikh at Osmanabad or after his transfer from Osmanabad. 11. In the circumstances, after assessing and analyzing the evidence before learned trial court, the learned trial court came to the conclusion that prosecution case is not genuine and it appears to be imaginary and mis-conceived, and consequently, acquitted the accused nos. 1 and 2 for the charges levelled against them and the view adopted by the learned trial court while acquitting the accused persons after scrutinizing the evidence on record is a possible view and same does not appear to be perverse and therefore, no interference therein is called for in the Appellate 10 jurisdiction and therefore, consequently present application does not bear any substance and same deserves to be rejected. 12. In the result, present application which is sans merits stands dismissed. Leave to file appeal is refused. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ... aaa/5143.10