1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO. 2198/2009 in CRIMINAL APPEAL NO......../2009 ( State of Maharashtra vs. Vijay Shamraoji Mandave )) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr. Anup Parihar, APP for applicant Mr. H R Dhumale, Adv.for Respondent *** C ORAM : A.P. BHANGALE, J. DATED : 30 th September,2009. 1. By this application, the applicant /(State of Maharashtra) seeks leave to file appeal against the judgment and order passed by Special Judge and Additional Sessions Judge, Amravati on 29.1.2009 in Special (ACB) Case No.8/1999, arising out of Crime No.3090/1998 reported at Chandur Railway Police Station, Dist. Amravati. 2. Heard submissions advanced by learned APP ; as also on behalf of the Respondent-accused, at length. 3. My attention has been invited to the impugned judgment and order. It is the case of the prosecution that the accused was serving as Junior Engineer in Construction Section of Panchayat Samiti, Chandur Railway, when in the year 1998 ‘Indira Awas Yojana’ was being implemented through Panchayat Samiti, Chandur Railway. It is alleged that the first informant was to construct his house under the supervision of the accused and accused was required to submit the report regarding construction of the house. It was alleged that at the time of disbursement of second installment of Rs.10,000/- to the complainant under that Scheme, accused had demanded and accepted bribe of Rs. 600/- from the first informant. It is further alleged that when the 2 third tranche of Rs.10,000/- was to be disbursed to the complainant (first informant ), the accused had demanded bribe of Rs. 2000/- from the first informant so as to release the same. Subsequently, accused demanded and admitted to have accepted Rs.1500/- ; out of which Rs. 1,000/- was to be paid by the first informant to the accused on 31.10.1998 and remaining Rs. 500/- to be paid after the bill to that effect being sanctioned. It is the case of the prosecution that on 2.11.1998, the first informant had alerted the ACB office, Amravati by his complaint and a trap was decided to be laid upon the accused. Thus, it is case of the prosecution that bribe money was accordingly paid to the accused. 4. It appears from the impugned judgment and order that the prosecution failed to prove that the accused demanded and accepted a sum of Rs. 600/- from the first informant by way of illegal gratification, other than legal remuneration, for releasing second tranche of Rs. 10,000/- and further failed to prove that on 30.10.1998 accused demanded a sum of Rs. 1500/- from the first informant and; on 2.11.1998 accepted sum of Rs. 1000/- by way of illegal gratification. Further the prosecution failed to establish that accused had accepted a sum of Rs. 1000/- from the first informant on 2.11.1998 by way of illegal gratification by misusing his position as a public servant. 5. It appears that the trial Court did consider the evidence of as many as six witnesses examined by the prosecution, including first informant- Dilip who was examined as PW 1 and Panch witnesses examined as PW 2 and PW 3 respectively. 6. It is specifically observed by the learned Judge of the Court below that the first informant -Dilip (PW 1) turned hostile and declined to incriminate the accused and as a result there was no satisfactory evidence before the trial Court as a complainant himself turned hostile to the prosecution case. The trial Court observed that merely on the basis of 3 allegations in the complaint, no inference can be made regarding disbursement of the second installment to the first informant as also regarding demand and acceptance of the bribe upon the first informant. The trial Court found that the first informant turned hostile inasmuch as he did not incriminate the accused in any manner and ,therefore, arrived at the conclusion that the evidence of the first informant was not at all useful for the prosecution to prove the charges. Material discrepancy was also noted in evidence of PW 3 Ganesh who acted as Panch; as the said witness in the course of his evidence conceded in clear terms regarding omission in his police statement that accused had asked the complainant as to whether he had brought money and the complainant replied in the affirmative and further omission in the police statement regarding payment of bribe money to the accused as also pursuant to the demand made by the accused. Material omissions in the evidence of Ganesh were noted in the light of the settled principles of law that conviction can be sustained only on the basis of substantive evidence, as observed in Rashtrapal vs. State of Maharashtra 1996 (2) Crimes 341 Bom. The trial Court also noted the principle that in order to invoke the presumption u/s 20 of the Prevention of Corruption Act the seizure of some money from the accused by itself is not sufficient unless the demand of bribe is duly established and proved. Reference was made to Mahemoodkhan Pathan vs. State of Maharashtra: AIR 1998 SC 2360. Another principle of law noted by the trial Court was that sole testimony of Panch witness cannot be believed unless it is corroborated. The principle was discussed in the light of the ruling in Doma vs. State of Maharashtra reported in 1981 Cri.L.J. 653. Under these circumstances, the conclusion reached by the trial Court that seizure of bribe money from the accused, by itself, is not sufficient to bring home the charge levelled against him, particularly when the demand of bribe money was not proved. Thus, in the present case since the complainant ( first informant ) himself turned hostile to the prosecution case, the case was handicapped which could not overcome. 7. For the reasons noted supra and in the backdrop of the facts 4 stated before the trial Court, as also the evidence of witnesses recorded before the trial Court, inference drawn and conclusions arrived at by the trial Court from the evidence led before it, prima facie no ground is made out for grant of leave to file appeal. Hence leave is refused. Application is dismissed. In consequence, Appeal shall stand dismissed. JUDGE. sahare