1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.139 OF 1996 Vinayak Narayan Gokhale, ] Age : 55 years, Occ.Service, ] R/o. 749, North Kasaba, ] Solapur. ] ..APPELLANT [Orig.Accused] Versus The State of Maharashtra. ]..Respondent ... Mr.Abhaykumar Apte, Advocate for the appellant. Mr.Y.M. Nakhwa, APP, for the State. ... CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 8TH MAY, 2009. ORAL JUDGMENT. :- 1. Through this Appeal, the appellant – orig.accused has impugned the judgment and order dated 6.3.1996 passed by the learned Special Judge, Solapur in Special Case No.4 of 1991. By the said judgment and order, the learned Special Judge convicted the appellant under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to suffer RI for one year and to pay fine of Rs.2000/- in default R.I. for nine months. 2. The prosecution case briefly stated is as under :- The appellant was working as a Junior Clerk in the Maharashtra State 2 Electricity Board, Sub-Division “B”, Tuljapur Ves, Solapur. The complainant (PW-6) Raghunath was residing in a hut in Ghongadi Vasti, Bhawani Peth, Solapur. The complainant filed an application for new electricity connection to his residence with Tuljapur Ves office. He visited the said office on 2-3 occasions and contacted the accused. It is alleged that 5 to 6 days prior to 6.8.1990 the accused demanded bribe of Rs.700/- from the complainant and assured him that his work would be done. On 6.8.1990 the complainant went to the office of the accused. On that day also the accused demanded bribe. The complainant promised to arrange for the same. However, the accused insisted that the complainant pay part of the amount. Accordingly on the same day, the complainant paid Rs.125/- to the accused. The accused told the complainant to pay Rs.500/- more to ensure that his work is done. On 31.8.1990 the complainant went to the A.C.B. Office and lodged his complaint about the demand of bribe. His complaint (Exh.36) was recorded. A trap came to be arranged. On 31.8.1990 the raiding party went to the office of the accused. However, the accused was not in the office. Hence, the trap was withdrawn and it was postponed to the next day. On the next day, after following necessary procedure the raiding party along with the panchas went to the office of the accused. The complainant was instructed that only if the accused made demand for the money, the money should be handed over by the complainant to the accused. On reaching office, as per the plan the complainant and the panchas went into the office of the accused. The complainant asked the accused about his work and accused replied that he will do his work and ask 3 him whether he has brought the money. The complainant answered in the affirmative. It is the case of the complainant that the accused demanded bribe money whereupon the complainant removed the marked currency notes and handed them over to the accused. The accused accepted the same. Thereafter the complainant gave signal to the raiding party who came in and accosted the accused. After completion of investigation, charge-sheet came to be filed. 3. Charge came to be framed against the appellant under Section 7, 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. The accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that the complainant had handed over to him Rs.500/- by way of actual charges towards a new electricity connection. Hence, he accepted the same from the complainant. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para-1 above. Hence, this Appeal. 4. I have perused the judgment and order passed by the learned Special Judge as well as the record pertaining to the present case. After carefully considering the matter, I am of the view that the appeal deserves to be allowed. 5. According to the complainant, he filed application for electricity connection in the name of his father. He visited the said office 2-3 times and contacted the accused. Accused demanded Rs.700/- and assured that he would do his work. On 6.8.1990 the accused again demanded bribe. The complainant said that he would arrange for the said amount, whereupon the accused asked him to pay at least part of the amount. Accordingly the complainant gave Rs.125/- to the 4 accused. However, the accused stated that he would do the work only when the amount of Rs.500/- is paid. Thereafter the complainant went to the ACB Office and lodged his complaint. Trap came to be arranged. On the day of the trap, the complainant approached the accused and asked him about the work. The accused replied that he would do the work and whether the complainant had brought the money. The complainant replied in the affirmative. The accused asked for the money. Thereupon the complainant took out Rs.500/- and gave it to the accused. 6. As far as the earlier demand and acceptance of Rs.125/- from the accused is concerned, there is no independent witness to the same. As far as the demand and acceptance of Rs.500/- on the day of the trap is concerned, on carefully going through the evidence, I find that the evidence of the panch witness in relation to demand and acceptance of money by accused is not at all reliable. The panch witness in his examination-in-chief has stated that when he and the complainant went to the table of the accused , “the complainant offered Namaskar to the accused. The accused asked the complainant whether he had brought sum of Rs.500/- as demanded by him. The complainant answered in the affirmative. The complainant then removed marked currency notes from his shirt pocket and showed to the accused. The accused then collected the same and counted the same with both hands. He kept the marked currency notes in the left trouser pocket.” 7. However, in the cross-examination it has been brought out that the deposition of the panch witness in his examination-in-chief about demand and acceptance 5 of money by the accused is an improvement. In such case, his evidence relating to demand and acceptance of money by the accused in the examination-in-chief cannot be relied upon. In such case, we are only left with the uncorroborated testimony of the complainant in respect of demand and acceptance of Rs.500/- by the accused from the complainant. Thus, it is seen that the panch witness i.e. independent witness failed to give any reliable evidence as to what transpired in the conversation between the complainant and the accused preceding the passing of the currency notes. In such case, the defence taken by the accused assumes great significance. The defence taken by the accused is that Rs.450/- was the amount required to be paid for a new connection and Rs.50/- was towards the test report which had to be obtained prior to a new connection being obtained. Hence, the total comes to Rs.500/- which is the amount which he accepted from the complainant. 8. On perusal of the evidence, I find that the prosecution has not brought forth any reliable material relating to the first and second demand. The evidence of the complainant is not corroborated by the independent witness. At that time except the complainant and panch, no one else was present. In view of the infirmity in the evidence of the panch, I do not find it safe to rely on the evidence of the complainant. In the facts of this case, I find that there is material to indicate that the defence version may be probable and in view of this, since the evidence relating to demand is shaken, insofar as the evidence relating to acceptance is concerned, it would be safer and proper to take a view that the prosecution has not proved its case beyond all reasonable doubts. 6 9. There is another piece of evidence due to which I find that the defence taken by the appellant is very much probable. It has come on record that there was dispute between the complainant and his land-lord. Due to this fact, the land- lord has cut the electricity supply of the complainant, due to which he was forced to seek a new electricity connection. The defence of the appellant is that about 20 to 25 days prior to the incident the complainant had approached the appellant and enquired about the expenditure of new electricity connection. The appellant told him that the electricity charges were Rs.450/- and the expenses for the test report would be Rs.50/- and the total expenditure would be around Rs.500/-. Five to six days thereafter, the complainant was passing by Manik chowk. At that time, the land-lord of the complainant was standing there. The land-lord of the complainant called the appellant and they had casual talk. In the meantime, the complainant passed from that chowk. The appellant greeted him. However, on account of the fact that he saw the appllant and his land-lord, he carried some impression that the two of them were talking or plotting against him. Hence, he decided to falsely implicate the appellant. Looking to the material which has come on record, the defence taken by the appellant is amply corroborated. 10. Looking to the evidence on record, I find that the defence taken by the accused appears to be probable. It is well settled that the defence need not be proved beyond doubt like the prosecution case, but, the same can be established by showing preponderance of probabilities of the defence. As stated earlier, the evidence of the independent witness is found to be an improvement. Looking 7 to the evidence of the complainant and the fact that it is not disputed that Rs. 450/- was required for new electricity connection and Rs.50/- for test report, the defence taken by the accused that Rs.500/- was handed over to him towards the charges for new electricity connection and test report, appears plausible. The explanation offered by the accused that he accepted the amount not by way of an illegal gratification but towards new electricity connection charge and test report charges appears to be reasonable and probable. Looking to the evidence on record, it cannot be said that the prosecution has proved its case beyond all reasonable doubts. 11. In the result, the appeal is allowed. The judgment and order dated 6.3.1996 passed by the learned Special Judge, Solapur in Special Case No.4 of 1991 is set-aside. The appellant is on bail. His bail bond shall stand cancelled. [SMT.V.K.TAHILRAMANI,J.]