..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3295 OF 2007 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2007 The State of Maharashtra. ..Applicant. Versus Dattatraya Shankar Diwakar and Anr. ..Respondents. .... Mr.Rajesh More, APP, for the Applicant-State. Mr.S.A.Ingawale, Adv. for the Respondents. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 2nd May, 2008. DATED : 2nd May, 2008. DATED : 2nd May, 2008. P.C.: 1. The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 27th April, 2007 passed by the learned Special Judge, Malegaon in Special Case No.1 of 2004. By the said judgment and order, the learned Special Judge acquitted the respondents-orig. accused Nos.1 & 2 of the offences punishable under Sections 7, 12, 13(1)(d) r.w. 13(2) of the Prevention of Corruption Act, 1988. 2. Heard the learned APP for the Applicant-State and the learned Counsel for the respondents. Perused the judgment and order of ..(2).. the learned Special Judge as well as the evidence which has been produced by the learned APP. 3. The prosecution case is that on 17.7.2003 the complainant and his cousin had purchased 30 litres diesel and they were bringing the said diesel on their motorcycle. When they reached near Chondhi Phatha, one police jeep came there and stopped their motorcycle. The police made enquiries as to from where they purchased the diesel and asked them to show the receipt. The complainant could not produce the receipt. Hence the police removed the drum of diesel and kept it in the police van and they took the complainant and his cousin to the police chowky. It is the case of the complainant that at that time respondent no.1 demanded Rs.10,000/- for not prosecuting the complainant and his cousin for bringing the diesel illegally. The amount was thereafter reduced to Rs.5000/-. Thereafter the complaint was made by the complainant-Vilas to A.C.B.. Trap was arranged. Pursuant to the said trap, they went to the police station. There they met respondent No.2 at the police station gate. The complainant asked accused No.2 to make a phone ..(3).. call to accused No.1 and call him to the police station. Accordingly, accused No.2 made telephone call to accused no.1 on his mobile and asked the accused No.1 to come to police station. Thereafter accused No.1 arrived and the money was handed over to accused No.2 on the directions of accused No.1. 4. It is the specific contention of accused No.1 that on 17.7.2003 he had a weekly off and he was not present in the jeep. It is pertinent to note that the complainant PW-1 Vilas has admitted that he cannot tell the names of all the police who were present in the jeep when their motorcycle was stopped. The complainant has further admitted that he does not remember whether the accused No.1 was present in the jeep when his motorcycle was stopped. In view of these admissions of PW-1 Vilas, the presence of accused No.1 at the spot appears to be doubtful, especially when accused No.1 has positively contended that he had a weekly off on that day. 5. As regards the demand of bribe on the day of the raid, it is seen that the complainant PW-1 ..(4).. Vilas has admitted that there was no talk between himself and accused No.1, much less, about the demand of bribe. Panch witness PW-2 has admitted that, in his presence no talk took place between the complainant and the accused No.1. Thus, there is no cogent record to show that accused No.1 had made any demand of bribe amount. This Court in the case of Trambak Binnar Vs. State of Trambak Binnar Vs. State of Trambak Binnar Vs. State of Maharashtra Maharashtra Maharashtra, reported in 2002(3) Mh.L.J. 2002(3) Mh.L.J. 2002(3) Mh.L.J. page.293 page.293 page.293, has observed that :- "While considering the evidence of prosecution, it is necessary to bear in mind the importance of evidence of prior demand which if trustworthy makes the trap legitimate to eradicate corruption otherwise it would be an illegitimate trap." 6. As far as accused No.2 is concerned, it has come on record that PW-1 Vilas Ahire and PW-2 Pravin Gondhale casually met accused No.2 Dileep Govind Pawar in the police station compound. They made enquiry with accused No.2 about the whereabouts of accused No.1. PW-1 Vilas Ahire ..(5).. himself requested accused No.2 Dileep Pawar to call accused No.1. It has also come on record that father of complainant Vilas Ahire i.e. Jibhau Ahire is the regular informant of police. Jibhau Ahire was also present along with his son Vilas Ahire and panch witness Pravin Gondhale. Accused No.2 Dileep Pawar felt that Jibhau Ahire must have come for giving secret information to the police station. Therefore, on the request of Vilas Ahire and his father Jibhau Ahire, accused No.2 called accused No.1 to the police station, by making a phone call. After about half an hour, accused No.1 arrived at the police station. As stated earlier, no demand was made by accused No.1 at that time. It is an admitted position that there is no demand of any bribe amount by accused No.2. The complainant has not made reference to the name of accused No.2 in his complaint. On the contrary, it appears that accused No.2 met the complainant and his father casually in the premises of the police station. Presence of accused No.2 was not pre-determined event. In fact, till the making of enquiry with him, accused No.2 Dileep Pawar was not in picture for any reasons. Before the Court, PW-2 could not ..(6).. identify accused No.2. If really accused No.1 Dattatraya Diwakar wanted to accept money, he would have instructed accused No.2 on phone to collect money on his behalf. There was no necessity for accused No.1 to come to the tea stall and after waiting for 15 minutes, direct accused No.2 to accept the amount. The evidence appears to be quite unnatural. Useful reference may be made to the decision of Honourable Supreme Court in the case of T. Subramanian Vs. State of T. Subramanian Vs. State of T. Subramanian Vs. State of Tamil Nadu Tamil Nadu Tamil Nadu reported in (2006) 1 SCC (Cri) 401 (2006) 1 SCC (Cri) 401 (2006) 1 SCC (Cri) 401, wherein Their Lordships have held that : "Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money is illegal gratification, not sufficient to establish guilt of accused." 7. Looking to the evidence on record, I am of the opinion that the view taken by the learned Special Judge is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected. ..(7).. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)